Morghan Richardson, a partner in the Matrimonial Law Practice at Davidoff Hutcher & Citron in New York.
Take a Break from Social Media
Divorce lawyers have long been mining social media for evidence in our cases. How do we use your posts in a divorce? Everything you post on social media, whether about the kids or spending money, is up for grabs in your divorce.
Be mindful of what you post on your accounts. If you are seeking to portray a certain lifestyle, your photos may tell a different story. For example, if you are telling the court you cannot afford spousal support, but you are posting pictures of yourself on a vacation or pictures of your fancy new car, the posts may undermine your credibility. If you’re fighting over custody but post wild parties or bring the child to a bar, your ex’s attorney may use these images to bury you.
But this isn’t just about your own posts. Be warned that your friends can sometimes inadvertently hurt your case too. For example, if you claim you are too broke to pay support, but you are spotted in the background of a photo at a mutual friend’s wedding in the Grecian Isles, your credibility will likely take a hit. I had this happen in a case where my client was spotted in the background of a friend’s selfie posted on Instagram!
Online support groups can also be dangerous because you never know who is lurking within the group. If you feel like venting about your case or your ex, do so with a close friend in person and not on the internet. Even if your case looks like it might settle, I’ve had situations come up where settlements exploded over ill-timed Tweets filled with rants about the case.
If you are in a divorce (or other court case), you should consider changing your privacy settings rather than deleting your posts. Once a case starts, your posts can be considered evidence, and deleting them may be viewed as the destruction of evidence, which can cause even bigger problems. Make sure you speak to your lawyer about your social media in any case.
Social Media Posts are Key Evidence
Social media posting will reveal a person’s associations and spending habits, which often become key issues in a contested divorce. Specifically, alimony is only available to a former spouse who remains single. The easiest way to prove that someone is not single is through their social media accounts. People who date, vacation, and spend holidays together can be presumed to have a supportive relationship, which negates an ongoing need for alimony.
Additionally, people tend to make comments about their children’s other parents on social media. [These comments are] often used as evidence that the commenter is not willing to support an ongoing relationship between the child and the other parent. It can [result in] a claim of parental alienation and/or more time for the other parent to solidify their bond with their children despite the commenter’s comments.
Social media pictures and statements are always admitted into formal courthouse evidence because social media posts (unlike most writings) can never be hearsay.
Compounding Problems with Pictures and Posts
There are several ways that I have seen Social Media affect divorce proceedings both directly and indirectly.
1) Couples often vent to friends on social media about their feelings related to their divorce and their ex. These [statements] are often thinly veiled, and it is easy to understand who the target is. They take the form of statements, memes, and direct attacks directed at their ex or designed to sway friends to “be on their side.” They can affect which friends and family are willing to testify or make statements of support during court proceedings.
2) Sometimes, extended family members use social media to weigh in with their feelings about the partner who is at fault. It can feel like others are airing their “dirty laundry” in public and can adversely affect in-law relationships long after the divorce is finalized.
3) What a person says on social media can be directly brought into the courtroom. I have heard numerous stories of screenshots being submitted in support of wrongdoing that can affect divorce settlements and child custody.
4) Indirectly, people seek support through social media. It can be helpful to connect with a group of people who have lived through a similar situation. Equally, it can confuse and inflame an already difficult situation. People follow confusing and misguided advice when working through their divorce.
At a minimum, social media can make a divorce more uncomfortable. At its worst, it can turn a fierce battle into a public melee.
Social Media Fuels the Fire
It will burn you, proving who, what, and where, with time and location stamping all for free, wrapped up in a pretty bow for opposing counsel. Dating, partying, or worse on a custodial night? All free recon for your ex. [Traveling] out of state on your non-custodial weekend can be construed as poor judgment. [Going] out of state on your custodial weekend can easily be deemed a violation in divorce proceedings. Tic Toking with your daughter while mama holds a margarita? Social Media can paint a snapshot of an unfit parent. How do you prove you only had one drink? You’re now viewed as a drinker. Twirling your new Tesla keys? Not quite the face of someone claiming low income.
Anyone going through a divorce should consider social media poison for your divorce proceeding. Not even private accounts are safe! Private and public accounts can be turned over in discovery and used against you to show mental state, alleged promiscuity, and overall fitness as a parent. Divorcing a divorce attorney knocked me to my knees, but I learned how to build myself up to be bigger and better.
Heed my warning. A picture is truly worth a thousand words. Snap away at your own risk!
Exploiting Social Media Evidence
Social media can impact divorce proceedings, especially in high-conflict divorce. Social media posts made publicly or even privately are often relevant evidence used in divorce court or arbitration proceedings.
One of the most challenging aspects of divorce proceedings, especially in high-conflict situations, is having evidence in cases that are “he said vs. she said.” Social media posts can provide one party with the evidence they need to prove a fact in question during a divorce.
Relevant ways social media affects divorce proceedings include:
- An ex “catfishes” you. They build a fake profile and friend, follow, or try to online date you to gain the information they can use against you in divorce proceedings.
- An ex builds a fake social media profile to create a false narrative and uses that phony information in divorce proceedings.
- One party may create harmful and defamatory posts about their ex, and not being familiar with defamation laws, could be charged with defamation of character. If the court confirms the smearing, it would most certainly be used in divorce proceedings as evidence.
- Photos and videos of you and your children on vacation or in a location not disclosed to your ex. The photos and videos can be used as evidence of parenting order breaches, violation of court orders, or to demonstrate poor parenting communication.
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