Legal Consequences of Using Social Media During Divorce

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In our previous post we discussed the emotional impact social media use can have during divorce. In this post we review the legal ramifications.

A frequent complaint of critics of social media is oversharing – people describe too much about themselves and their lives and in great depth and detail. Usually the critique applies to posts becoming ridiculously mundane, but it also involves some of the “catty” comments we discussed in our last post that cause emotional hurt.

While oversharing on social media in general might be annoying, in a divorce it can be the difference between sole and joint legal or physical custody, or an equitable and inequitable division of property. The more one discloses on social media, the more likely one discloses something negative or even fatal to your legal case. People have overshared information relating to affairs, abuse, poor parenting – you name it, people have probably, often inexplicably, posted on it.

But what about private networks and privacy settings that limit access? While it is true that various social media platforms do appear to offer privacy settings, one should assume that anything posted will be made public. Why? First, because it makes everyone think twice about posting an item – could this come back to hurt me in court? Second, because social media can be like the old game, “telephone,” where people either repost or retweet or simply copy a post in a private setting that gets back to your ex or a friend of your ex. Third, good computer programmers can find posts thought only private or previously deleted. One should not risk exposure betting against a motivated and skilled programmer.

But don’t privacy laws or wiretap laws keep me safe? While it is against the law to illegally access a person’s electronic communication, most disclosures through social media do not occur through hacking but the “telephone” cycle we noted above. Further, proving a hack can be challenging and may not even persuade a judge to bar it from evidence (the Fourth Amendment applies to criminal prosecutions).

So, given all of the potential pitfalls of saying something online that could be used against you in your divorce, the best practice is simply to stay off social media until at least the end of the divorce.

If you have questions about social media and divorce, contact us – we can help.