If you are like most adults, you have some social media presence. While social media can be fun and a great way to connect with people, you need to remember that what you put out there on social media is accessible to just about anyone and can be used in your domestic case. While it’s always a good idea to exercise some care and discretion in what you post on social media, it’s especially important to take care if you are involved in separation or divorce proceedings. While it’s probably not realistic to expect that all of your social media activity will stop during the divorce proceedings, there are steps that you can take to minimize the chances that your social media activity will be utilized against you in court.
It’s important to remember that the entirety of your social media history is obtainable by the other side through the discovery process, so posts that you made months or years ago can be accessed and used. You cannot control what you have already put out there, but you can control what you put out there going forward. While you may be tempted to try to erase or delete your accounts to prevent the other party from gaining access to your social media history through the discovery process, you should resist the temptation to do that – there are rules about destroying potential evidence in case and if you delete your account, it is possible that the court will decide that you deleted it because there must have been some really bad stuff on there and then the court can speculate about what that stuff may have been.
Since you cannot control what is already out there, focus on what to do going forward. Here are a few helpful hints for how to minimize the effect that your social media activity will have on your case:
- Change your passwords – immediately. While you may not think that the other party has your password, it is possible that they do – especially if you have previously logged into your social media accounts on a shared device. When you change your password, make sure to change it to something that will not be easy for the other party to guess (i.e. don’t use your pet’s name or your children’s names or your birthday). The best passwords are ones that are not simply made up of common words – use something that is random and impossible to guess from the shared experience you have with your ex.
- Limit your use of social media – the less you post, the less likely you are to post something that can be taken the wrong way or that can be used against you. When you do use it, be especially careful about posting things that can show where you were at any particular time or who you were with.
- Don’t use social media to talk about your ex. While it’s tempting to vent into the social media universe, resist the temptation to do so. Again, remember that even if your ex cannot see your posts directly, he or she may see them through a mutual friend or may obtain your posts through discovery. If you have posted derogatory comments about your ex and those comments are then read to the Judge at a hearing, you will look bad and it may hurt your case. If you need to vent, talk to a close friend or a therapist – and for the most part try not to do so in writing.
- Be careful about posting information and pictures of your children. Even if you have historically posted about your kids, try to limit or stop doing that during the divorce proceedings. Your ex can try to argue that by posting about your children, you are exposing their private lives and acting in a way that is not in the children’s best interests. That can then have a negative effect on your custody case.
- Do NOT post about any new romantic relationship you are in. You may have moved on from your ex and started dating someone wonderful but keep that to yourself for now.
- Don’t talk about your case online. Again, it may be tempting to vent about what you believe is a bad decision by the Judge but resist that temptation. Remember that it’s probable that the Judge will end up seeing what you post.
- Finally, remember that it’s not just the public posts that are accessible and discoverable during your case. Private messages and chats can also be accessed. So, just because it’s not out there for everyone to see does not mean it’s actually private.
This list may seem long, but it all boils down to the basic premise that once you send something out there, it’s out there and can be found. When in doubt, don’t put it in writing. If you want to continue to enjoy social media during your divorce proceedings, you co do so, but keep your activity light – like posting cat videos and recipes.
