Facebook, Twitter, Instagram, LinkedIn, Snapchat, and other social media and professional networking websites and smartphone applications have become an important part of our everyday lives. When something happens in our lives, we post it. When something happens in our careers, we post it. We share so much information on social media that sharing personal and professional information has become second nature. Often times, we post without thinking about the potential consequences.
Typically, when one thinks about the negative consequences of social media, they are tied to a work setting. Most people were taught not to post damaging photographs or written messages which may impact current employment. However, if you are currently going through marital dissolution or a divorce, or are about to commence a divorce proceeding, there are several ways that messages and pictures on social media can have an impact on your current or upcoming proceeding.
Admissibility in Court
California law permits discovery of information that is not privileged and that is “reasonably calculated to lead to discoverable evidence.” A “private” Facebook profile does not qualify as privileged information; rather, privileged information is typically information between an attorney and a client or information between a client and a medical provider. Thus, just because a Facebook profile is “private,” does not mean that someone cannot see the post, print the post, and use the post in divorce litigation.
In family law cases specifically, if either party has shared information via some social media platform that is different than what they’ve shared in person or in legal documents, many problems are likely to arise. Lying on financial documents can result in serious penalties, and social media, email, and text messages are a way to provide a paper trail which may contradict previous statements.
Social media activity can be used as a tool to show that a party in a divorce proceeding may be hiding assets or may have more financial resources available to them than they would like you to believe. If, for instance, one represents to the court that he or she does not have the finances to pay support, but later a social media post is introduced which shows a large new purchase, this may damage credibility and result in changes to support orders.
Likewise, any photographs from your former spouse, or mutual friends of your former spouse, showing new cars or new boats they purchased, can be used to show that your former spouse may be hiding certain assets until the completion of the divorce proceeding.
In the past, judges have allowed Facebook posts and pictures to be used against a parent seeking custody. Courts are permitted to use the language written in social media accounts to determine whether a custodial parent has the physical and emotional ability to care for the child. Additionally, any photographs evidencing an action that is not in the best interest of the child, or is a violation of a Court Order, can be saved, printed, and used against that specific party.
You must always keep in mind that once you post something, the post is out there for the world to see. Even if you have your former spouse on a setting in which you don’t believe they can access your photographs and messages, you may share mutual friends. For that reason, there’s no way to guarantee that a mutual friend is not showing your former spouse photographs and/or written messages you have displayed. Thus, if you wouldn’t share with the whole world what you are about to post or tweet, it’s probably wise not to post it at all, as doing so may have a long-term effect on your divorce proceeding.