Whether we like it or not, social media has been integrated into nearly every aspect of our lives. We post so many details of our daily activities on our personal pages: weddings, births, vacations, and every moment in between. These posts can show us a lot about the way someone is spending their time, which can be relevant to a family law case for many reasons. The most skilled attorneys use photos and other posts on social media to successfully argue their client’s perspective during settlement negotiations or in front of the court. The question is, how often can social media posts be used as evidence in these cases?
Social media use during a divorce
In divorce cases, social media posts can be useful for several reasons. Primarily, they can show how one party is spending their time or money; this can be relevant to spousal maintenance, distribution of assets, child support, and custody. They can also reveal inconsistencies in someone’s story – for example, if a parent claimed to have missed scheduled custody time with their child due to illness but posted photos of him or herself at a leisure event during the same time frame.
When one spouse has hidden assets, they can also come to light through social media. Things like expensive cars, jewelry, and vacations might be easy to hide when reporting the couple’s marital assets, but if they show up on one party’s social media page, that spouse will have some explaining to do.
Social media can also show parents spending their time involved in less-than-savory activities; proof of drug use, excessive partying, partaking in dangerous activities, or having the parties’ child present during any of the above can help tip the scales out of that parent’s favor when a judge is awarding custody or parenting time. In a similar vein, posts or online communication proving domestic violence can help the affected partner obtain harassment restraining orders or orders for protection during the divorce and beyond.
Social media posts can often help highlight the big-picture circumstances of a no court divorce case; they can often be reviewed in the same manner as financial records and other documentation created during your marriage. If there are posts on your spouse’s social media page that you feel the court should see, inform your family law attorney. He or she can help you review this information and determine whether you have a good chance of being able to use it to support your claims.
Determining the discoverability of posts
Previously, the courts have established that there is a limited expectation of privacy on social media sites; therefore, they have broadened discovery rules to allow for the inclusion of much of social media. This is generally the case even if the poster initially viewed the information they posted as “private” or for a limited audience.
In one case, Richards v. Hertz Corp., the plaintiff claimed to have an injury resulting from an accident. However, the defense came across photos of the plaintiff on her Facebook profile where she was skiing during the time she claimed to be injured. After this discovery, the defense sought to gain access to additional information on her Facebook page, since her individual settings kept that information private from the general public.
In this case, however, the courts limited the defense’s access to the plaintiff’s Facebook information to only photos that showed her engaging in sports or other physical activities which she would need to be able-bodied to do. However, the appellate court eventually reversed that decision with the reasoning that, since the photo of her skiing was relevant to determining the validity of her claim, it was likely there was other evidence on her private Facebook.
Clearly, there is some flexibility with the discoverability of social media posts. Even when the entirety of someone’s profile isn’t deemed acceptable to share with the courts, information that was posted without privacy settings and is therefore available to the public can often be considered discoverable. For divorcing parties and their family law attorneys, it’s important to keep in mind that what you do on social media can make a difference in your case. Use social media wisely, and don’t post anything that the other party could use out of context to disparage or discredit you. Get in touch with Allison Maxim at Maxim Smith to discuss your particular situation as it relates to Family & Divorce Law.