Stay off Facebook, Twitter, Instagram, or other social media platforms if you are or may be in court. 81% of attorneys discover social networking evidence worth presenting in court. Social media can be used as evidence during divorce procedures to show proof of infidelity, gains in income, and even affect child custody by posting reckless behavior.
When it comes to divorce or separation, Facebook isn’t your friend,” says Plevy. Both he and SmolenPlevy’s Kyung (Kathryn) Dickerson urge clients to use extreme caution when using Facebook, Twitter and other social media sites. “If you’re facing a divorce, it’s wise to break up with Facebook and Twitter too,” cautions Dickerson.
“Sometimes catching a cheating spouse is as simple as checking their status updates and photo albums on Facebook,” says Dickerson, who, along with Plevy, make it a point to review social media sites for information in divorce cases. “Too many people are quick to update or tweet about their new boyfriend or girlfriend, the jewelry they’ve bought, the parties they’ve attended and the romantic weekends they’ve shared.” It significantly affects that person’s credibility, when the same person is claiming poverty to avoid alimony or additional child support.
How social media sites have come into play in court
- A married man who listed his Facebook status as single, and then “friended” his soon-to-be ex wife. He then posted hateful comments about his spouse and children, comments about the marriage and their respective contributions to the marriage and his intentions with regard to the litigation. These postings were the opposite of what he testified to and how he wanted to portray himself in court.
- Suffering from post-partum depression, a woman blogged that she didn’t want her child and wished the child was never born. While she could explain her comments in light of her psychological condition, the comments were used to argue that she should not have primary custody of the infant.
- People have their phones check in when they are at various locations, but then deny that they were at that restaurant, bar, etc.
- A trail of telltale texts were used to argue infidelity. Dickerson notes that depending upon the model of phone, just because people hit ‘Delete’ doesn’t mean the messages disappear from the phone’s internal hard drive, or that they cannot be accessed by forensic professionals with the right equipment.
The report supports warnings from SmolenPlevy’s Alan Plevy, who has been raising the issue publically and with clients for years. “When it comes to divorce or separation, Facebook isn’t your friend,” says Plevy. Both he and SmolenPlevy’s Kyung (Kathryn) Dickerson urge clients to use extreme caution when using Facebook, Twitter and other social media sites. “If you’re facing a divorce, it’s wise to break up with Facebook and Twitter too,” cautions Dickerson.
“Sometimes catching a cheating spouse is as simple as checking their status updates and photo albums on Facebook,” says Dickerson, who, along with Plevy, make it a point to review social media sites for information in divorce cases. “Too many people are quick to update or tweet about their new boyfriend or girlfriend, the jewelry they’ve bought, the parties they’ve attended and the romantic weekends they’ve shared.” It significantly affects that person’s credibility, when the same person is claiming poverty to avoid alimony or additional child support.
The SmolenPlevy attorneys warn that the damage can just as easily be caused by others, including a new romantic interest who likes to share too much personal information online or who likes to post pictures on a photo-sharing site. In many cases, that information is repeated by “Friends” and re-tweeted by followers, leaving a long paper trail that a party in litigation would prefer not to have available to the other side. Why do people feel the need to reveal their liaisons? “Often when people begin new relationships, they are not thinking about the old one — even if the issues related to that prior relationship have not been resolved,” Plevy says.
Social media sites have come into play in unique ways, including:
- A married man who listed his Facebook status as single, and then “friended” his soon-to-be ex wife. He then posted hateful comments about his spouse and children, comments about the marriage and their respective contributions to the marriage and his intentions with regard to the litigation. These postings were the opposite of what he testified to and how he wanted to portray himself in court.
- Suffering from post-partum depression, a woman blogged that she didn’t want her child and wished the child was never born. While she could explain her comments in light of her psychological condition, the comments were used to argue that she should not have primary custody of the infant.
- People have their phones check in when they are at various locations, but then deny that they were at that restaurant, bar, etc.
- A trail of telltale texts were used to argue infidelity. Dickerson notes that depending upon the model of phone, just because people hit ‘Delete’ doesn’t mean the messages disappear from the phone’s internal hard drive, or that they cannot be accessed by forensic professionals with the right equipment.
What to do and not do on social media during divorce
Don’t post anything you wouldn’t want read in court
Remember that anything you put online can be used as evidence against you in your divorce. This includes but is not limited to, private messages, second accounts, and even dating apps.
Incriminating social media content can potentially affect property distribution and child custody arrangements, so it is crucial to be extremely careful with your content. Posting positive changes like a new house or job change can affect your divorce, just like posting pictures of partying and drinking can.
Do change passwords
Making your accounts private and changing your passwords are both excellent ways to ensure that your social media is protected from your ex-spouse and their attorneys. Cases could possibly move to criminal court if spouses attempt to break into their ex’s accounts, and it is crucial to ensure you are the sole viewer and curator of your content.
Don’t post about your spouse
Whatever you do, never speak ill of your ex or try to provoke them with your posts. Even if they are blocked, mutual friends and other followers could share this information, and it could end up being used against you in court.
This includes private direct messages on any platforms. Nothing on social media is 100% private, and it is not worth risking your case just to badmouth your ex.
Do take time off
If you are not confident that your content online is safe from your ex’s attorneys, it is a good idea to take a break from social media. Even if you just interact with other friends’ content and don’t share any of your own, it is a good idea to take a break from sharing about your life when you are going through a divorce.
If you have any questions about making smart choices with your social media during a divorce, please do not hesitate to reach out to Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
