Can Social Media Hurt You in a Divorce?

No matter how much you enjoy using social media, experts warn your online activity could cause you trouble during a divorce.

“There’s nothing at all that’s good that can come of social media and a divorce case,” says Michael Mosberg, partner at Aronson Mayefsky & Sloan, LLP. “It’s incredibly dangerous because it’s so accessible — people go on it without even thinking. People engaged in the process of social media through email, signing up for a dating site, or making a purchase they don’t want someone to know about. They are not thinking about the ramifications of their conduct.”

Although laws are still evolving, experts caution against social media usage during this time.

“You have people operating with high emotions when they’re going through a divorce and a certain post or picture that appears on a social media account can be damaging and become a point of contention or drama,” says Brian Blitz, principal at Berger Schatz.

"You should do everything in your power to conduct yourself as cleanly as possible,” says Mosberg. “Avoiding social media during your case is the best possible advice and the best course of action.”

Your Online Activity Can Be Damaging

“It’s so easy to get tagged in a photograph or mentioned in someone’s tweet that includes a location,” says Blitz. “Those are the kinds of things that generate drama and hostility and raise questions.”

People don’t always consider the consequences of social media activity, and pictures don’t lie, experts say. If during the divorce proceedings, for example, your partner posts about vacations with someone new or buying lavish gifts for somebody else, you can investigate their spending and subpoena credit card and bank statements. Your partner may ultimately end up owing money back to the marital estate.

“[Social media’s] another tool to understand what divorcing people are doing that can lead to investigating information about the other person,” says Blitz.

As soon as you think about divorce, you’re under an obligation not to delete anything that a court might find relevant — your social media posts are considered evidence that can be used as part of your divorce proceedings. “Lawyers can’t tell people to destroy evidence, so a lot of lawyers tell clients not to use social media rather than to delete them,” says Randy Kessler, founding partner of Kessler & Solomiany. Also ask your friends not to post anything about you and monitor what your children post as well.

But, if you’re not on social media, experts say, there’s nothing to look at.

Your Phone Is Private… Except for Texts

“The law is evolving,” says Kessler. “If you pay for a cell phone, that doesn’t give you the right to tap into [someone else’s phone on your plan] unless you have an agreement.”

Although carriers generally delete texts after a certain period, your message’s recipient may not. “It’s taken over as the communication du jour over email, and people are saving text messages and using them as evidence,” says Mosberg. “Email, you spend more time thinking about it.Texts are oftentimes worse because people just shoot them off.”

Can Social Media Be Used to Notify?

People have to receive notice of hearings so they know to be present, and typically that's delivered in person. “If someone is avoiding a hearing and you’re aware of a form of communication, if you ignore it, you’re at your own risk,” says Kessler. “You can’t serve papers [using social media] — serving means they know the lawsuit exists.”

Someone needs adequate notice that they’re being sued, which is the point of service of a lawsuit. If you can’t find someone and you don’t know where they are, you can publish the notice in the paper so that hopefully your ex can see it, says Kessler. Even though you are doing everything to make sure they see it, they still may not. This is where Facebook may be helpful since they’re more likely to see the notice if you send them a message or put it on their page.

"If there is literally no other way to provide someone with proper notice of an action, it might be a viable alternative, but it likely won’t change the basic ways in which notice is permitted by a particular state,” says Mosberg. No matter how someone is given notice about proceedings, whether through social media or email, the court has to approve that method as an alternative to the traditional methods of providing notice.

Professional Pursuits an Exception

Using professional websites like LinkedIn are OK, since people generally don’t post personal information, but rather use them for professional pursuits to network or obtain a new job.

You can use social media to announce new ventures too, provided you tell all. “That’s fine, but you better disclose that in your divorce case otherwise you’ve created a credibility issue for yourself,” says Mosberg.

Time Can Make Things Better

Even if someone posts something harmful to their case, they can still recover, experts say. If there’s been no activity during the next six months to two years and it was a single transgression, judges may understand.

“Time has a way of improving the optics,” says Mosberg.“The court understands that people are human and can make mistakes, but will also recognize where people have learned from those mistakes and not continued the behavior."

Start Fresh… Electronically As Well

“If you share the computer and you use it all the time together and share passwords, you can expect no privacy from each other,” says Kessler. “Most times, you cannot break into someone’s accounts if you don’t share passwords.”

While you begin  your new single life, consider starting over electronically too.

"Change passwords immediately and stop using a shared computer,” says Mosberg. “Don’t delete or alter social media, just deactivate the accounts. Start fresh. Establish all new email [addresses] and passwords on all your accounts.”