You thought your divorce was going to be amicable, but things seem to be going in a completely different direction. You’ve been separated for a while and you’ve been “checking in” on Facebook when you have been out with friends, including someone you’ve been dating. You’ve also been sending messages back and forth with that person. Problem?
Social media postings on any platform have been used in all types of litigation – from breach of contract cases to criminal prosecutions. The most popular platform is Facebook, but users have incriminated themselves and ruined their chances of prevailing in civil cases, including divorce, using every possible social media platform. In the context of divorce, social media activity during three distinct phases can impact the process, the outcome and whether there is ongoing litigation – pre-filing; when the case is pending; and post-divorce.
Social media activity during this time period has obvious implications. This activity often provides evidence one spouse uses to file for divorce from the other, or provides the responding spouse with evidence of fault on the part of the filing spouse. We all know people who are social media addicts – anyone who follows them or is connected to them knows way too much about everywhere they go and who they are with. Even if you think your spouse is not privy to your private messages and posts, you must assume that they will see them via friends who will forward posts, share posts, or just talk about them. Social media activity can confirm suspicions or lead to suspicions if someone posts about an activity when they have told their spouse they were doing something different. Social media activity can provide evidence of adultery, income, and inappropriate behaviors that can affect child custody and visitation.
During Divorce Litigation
The potential impact of social media activity depends on the issues that are raised in the divorce litigation. What may be unimportant in one person’s divorce may have a huge impact on someone else’s case. In a typical case, for most of the time while the divorce is pending the spouses are not living together and people mistakenly believe that what they do after separation won’t matter. This is wrong. Some examples are illustrative:
Joe and Sue separated after Joe caught Sue having an affair. His attorney filed suit for divorce and Sue’s attorney denied the affair and asked that Joe be obligated to pay spousal support to Sue. Joe’s attorney told him that he thought he could prove Sue’s adultery and that, in Virginia, if Joe can prove adultery, Sue will not be able to get spousal support (except in limited circumstances). As the case drags on, Joe starts to date Mary, who he met after his separation from Sue. The relationship becomes serious and Joe takes Mary on a Caribbean cruise. During the cruise and after returning, both Joe and Mary post pictures on Facebook and message friends about how romantic and wonderful their balcony cabin with king bed was. Now Sue’s attorney is asserting that Joe cannot rely on adultery to prevent Sue from obtaining alimony because of the doctrine of recrimination.
Assume the above scenario is modified so that there was no adultery before the parties separated, but after the parties separated, Sue went on the cruise with Mike and they posted pictures and messages about their romantic cabin. Under the modified scenario, Joe could assert that Sue was not entitled to alimony because of her post-separation adultery.
The potential impacts of social media activity on many aspects of a divorce case, from spousal support, to determination of income for child support, to determination of custody and visitation for minor children, are too numerous to discuss here or for an attorney to address in advising their client on what they can and cannot share on social media. The best advice is that during your divorce case you should stay off social media completely, or, at the very least, assume that everything you post may be seen by your spouse and/or the trial judge.
The potential impact of social media activity is less obvious after a divorce is final. In almost all divorces there are aspects, typically alimony or child-related issues, that continue after the divorce is final. Posting about new luxury automobiles or lavish vacations can lead to follow-on litigation to increase (or decrease) spousal support or child support. Sharing about a getaway with your new love when you asked your ex to keep the kids for the weekend because you had to work can result in your ex asking to modify the visitation arrangements. Posting a video of your child doing something funny AND dangerous can result in investigation by child protective services.
Avoiding these potential issues may make your Facebook page more boring than a middle school yearbook, but it may save you lots of money in attorney fees and even more in peace of mind.
What To Do
You’re reading this and thinking to yourself, “Oh no! I’ve been posting all sorts of stuff that could kill my case.” What can you do about it? The best advice, at least as far as what you have already shared on social media, is to do nothing. Sure, you could delete the objectionable posts and pictures. You could even delete your entire Facebook or social media presence. The problem is, like everything else on the internet, once it is out there, it is out there. You have no idea who has copies of what you posted or has shared what you posted with others. Especially if litigation is pending, your deletions may be spoliation (destruction) of evidence, and can result in sanctions or a court finding against you. Worse still, deleting items and denying that the events or what was shared happened can result in charges of perjury. At least with Facebook, during litigation, a party may require the other party to download their Facebook history and turn it over. The history will show all activity, including activity that was later deleted.
The best advice regarding social media, without consideration whether there is or may be litigation pending, is to recognize that your activity is not private and can be discovered during litigation, whether in the context of divorce or otherwise. Assume your activity is public for all to see and act accordingly.