Family Law Focus – Cozen O'Connor

Social Media Pitfalls In Divorce

shutterstock_134112389These days social media is ubiquitous.  Everyone, young and old, enjoys some form of social media — from Facebook to Twitter to Instagram– we are all spending significant time posting our life happenings, likes and dislikes, comments and thoughts.  But when there is a divorce, all these well-meaning posts can turn ugly and be used as fuel for the fire.

Courts now are more apt to consider social media posts in custody, divorce and support matters.  People post pictures of their children doing dangerous activities which can be used by the other side to challenge parental fitness.  In a support case, a party who claims that they are not able to work can be “caught” in a post running a marathon or skydiving or undertaking other adventures.  People connect to former love interests through social media which connections can lead to real-life meetings and then sometimes, to divorce.

While many people naively believe that their social media posts are private, this is a misconception.  As part of routine discovery, it is a common practice to ask a party to a divorce to provide documentation related to their social media activity.  And while attorneys and their staff are prohibited from concealing their identity to “friend” a party to a lawsuit with the purpose of obtaining information, posts on one’s social media page are often seen by friends and relatives of the opposing party and/or the opposing party directly, making this information easy fodder for a court battle.  Moreover, once a person realizes that his or her posts were inappropriate and not something they would want a Judge to see, they cannot simply remove them as that may be construed as spoliation of evidence.  Thus, the best idea is not to create these posts in the first place.  Simply stated, if you would not show a photo or share a comment with your soon to be ex and/or the parent of your child, you should probably not be posting it on social media.

Like any other habit that it is difficult to break, going “cold turkey” on social media can similarly prove challenging.  Nonetheless, for those who find themselves battling in a family matter, it may be the best course of action, at least until the case can be resolved.  And if there are posts that in hindsight were made in poor judgment, the good news is that Judges are oftentimes very forgiving and will give parties a second chance especially if there is an acknowledgement of wrongdoing and a movement forward in the right direction.

Whether you are involved in family law litigation or not, the old adage, “think before you speak,” should be adapted to “think before you post.”  While this practice cuts down on some of the spontaneity of social media, considering what you say or do before it is done, is always a wise move.


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