Most people understand, on some level, that they should be careful what they post during a divorce. What they don’t understand is how thoroughly opposing counsel can use that material against them – and how little protection “private” settings actually offer. The mechanics matter here. This isn’t about etiquette. It’s about evidence.
How lifestyle posts become financial exhibits
During financial settlement negotiations, both spouses must make full and frank disclosure – meaning they must paint a full picture of the assets, income, and lifestyle. Needless to say, social media can tell a different story to what was outlined in the court documents.
A picture of a shiny new car, a weekend away, or a business dinner can easily be printed off, attached as an exhibit to an affidavit, and handed over as evidence that your spouse has not declared extra income or hidden their true financial position. Spousal maintenance claims are especially at risk here. If your client is claiming they cannot afford allowances or additional financial support, but regularly posting from luxury overseas holidays, you can bet they will be bringing it to court’s attention.
Geotagging only makes things worse. Most users don’t realize that their uploaded photos contain embedded data about where and when the image was taken. This can be used in evidence to directly contradict sworn evidence on issues such as working hours, living arrangements, and movements.
Venting online and what it costs you
Divorce can be extremely difficult and stressful. Feeling the urge to express your frustration online and post something negative about your ex-partner is common. However, it can also be incredibly harmful to your case.
For custody battles, the “best interests of the child” standard is employed by courts to make a decision. Part of that criteria is determining whether parents will encourage and support the child’s relationship with the other parent. Negative social media posts don’t just demonstrate conflict, they can be used as court evidence that one parent is not able or willing to co-parent. This sort of evidence can affect court decisions regarding parental responsibilities.
Now, more and more temporary court orders include non-disparagement clauses regarding social media. If you breach one, that’s not just a bad tweet – it can become a court order violation.
The deletion trap
Once divorce proceedings begin, the removal of content that may be pertinent to the case is considered a spoliation of evidence. A court may use what’s called an “adverse inference” which means they can assume that whatever was deleted would have been unfavorable to that party.
Here’s where people fall into the trap. They will make a post, realize that it could harm their position, delete it, and assume it’s taken care of. But through digital discovery, the opposing counsel can request social media archives, which includes metadata that can show that the post was deleted and when and these could become admissible in a court of law.
The deletion becomes the problem. It’s quite simple if there’s litigation don’t delete anything. Screen shot what you have, and talk to your attorney. Most likely that’ll be in your best interest.
Third-party posts and tagged content
One area where people are often caught unawares is content they didn’t post themselves. A friend’s check-in at a bar, a family member’s photo of a vacation, a tag in someone else’s update – it all becomes fair game.
You may never have hit “publish,” but it’s there.
81% of top divorce attorneys have seen an increase in evidence from social networking sites in the past five years, with Facebook being the primary source (American Academy of Matrimonial Lawyers). Most of the evidence comes from what these lawyers describe as “secret” sources, which means it’s not from the publicly available profile.
This is why a good family lawyer Liverpool will question you not just about your own use, but about any wayward references to you, that your connections are sharing publicly, and whether any of it could become evidence.
The case for a social media blackout
The simplest approach that most family lawyers will give their clients is to walk away from all of it until the case is over. Not some of it. All of it.
The “privatize everything” route doesn’t solve the problem that your ex was your friend on Facebook for six years before you blocked them or that Tweets and Instagram posts can be downloaded and printed. You don’t control all the copies of the photos or posts, the recipients of your updates do.
The only way to prevent an opposing counsel from obtaining your updates, photos, and profile information is to prevent you from generating those things. Locks can be picked. Curtains can be opened. Cellphones can be seized.
The fastest, easiest, and least expensive solution for your lawyer is to just cut the data stream off. Shut it down. Post nothing. Update nothing. Tag nothing. Share nothing.
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