Social media has grown to become an unavoidable aspect of our everyday lives to the point where it is nearly impossible to find one person among your family, friends, or peers at work that does not have some sort of social media presence. Social media has changed the way we do everything, from how we communicate with friends and family, to how we decide which products to purchase. Now, social media even affects the way we litigate divorce cases. According to Pew Research, in 2019, 72% of the public used some type of social media. With social media use being this prevalent in today’s world, the chances that one’s spouse is using some form of social media is quite high. A savvy divorce attorney will not miss the opportunity to utilize this powerful tool and present social media as evidence in support of their cases. In fact, according to the National Law Review: In today’s world, social media is used for both professional and personal purposes, with many of us posting regular updates and messages on our pages without really considering the consequences. However, California courts regularly uphold evidence from social networking sites including Twitter, Facebook, Instagram, TikTok, LinkedIn, and even online dating apps. Anything that is public and easily accessible is fair game. Even if a party’s social media is not public, it can be requested by the other side in discovery. California courts have held that social media is discoverable for three main reasons:
  1. It does not violate any privacy, as there is no expectation of privacy.
  2. It can be relevant.
  3. It does not violate any privilege.
Ultimately, as long as the request can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, such as hidden assets or information relevant to custody, the Court is likely to allow it.
    • It is critical for divorce attorneys today to be aware of and understand the ways in which social media can impact their cases. Here are some of the most common examples: Social media can be very useful for support issues, determining the marital standard of living, or even proving the existence of hidden assets when a party is boasting about expensive vacations, new vehicles, or other luxury items on their social media. A parent may have a hard time alleging that they cannot afford to pay spousal support when their Twitter account shows repeated complaints about the poor customer service at the Ferrari dealership.
    • Social media can have an impact on custody proceedings if one parent can show that the other is engaged in unsafe or inappropriate behavior around children. Evidence that a parent is frequently out late partying, excessively indulging in drugs or alcohol, or even getting a little sloppy at a social gathering where the children are present, can be incredibly damaging. It is worth noting, it doesn’t matter if the parent is exaggerating, joking, or even portraying a lifestyle that is not their own. Social media posts that demonstrate risky or irresponsible behavior could call into question a party’s parental fitness, and can negatively impact a custody case, even if the party is not directly engaging.
    • Social media can be instrumental in proving violations of restraining orders. Social media check-ins to restricted locations or contact with the other party through social media can be instrumental in proving a party violated a restraining order.
    • Social media can even be used to verify claims of infidelity. While California is a no-fault state and a spouse cannot be punished financially for infidelity, if a party can show that community funds were used during the course of the infidelity, then it becomes relevant. For example, if a party’s new girlfriend is posting about the fancy jewelry he bought her while away together on an expensive vacation, their soon to be ex-spouse could seek reimbursement of any community funds spent in the divorce. As you can see, a party doesn’t have to post the offending content themselves. Any content posted by friends, family members, etc., could serve as evidence.
It’s important that attorneys discuss the impact of social media and advise their clients to use social media responsibly. Getting those “likes” might feel good in the moment, but that client will be unhappy when those posts are read aloud in court. While most attorneys will not be successful in convincing their clients to go off the social media grid completely while their case is pending, the following are some practical pointers that could help litigants avoid giving their ex-spouse and their attorney any information that may be used against their interests:
    • Set all profiles to private whenever possible
    • Do not post anything personal, particularly about your divorce, children, finances or lifestyle
    • Unfollow your spouse and your spouse’s family, friends, or anyone who could show your posts to your spouse
    • Do not boast about promotions, bonuses or other work-related achievements
    • Do not disparage or say negative things about your spouse on social media
    • Do not post about your divorce before it is commonly known amongst your family, friends, and particularly children
    • Do not post pictures with your new partner or with your new partner and your children
    • Do not post pictures or other media that depicts you drinking, consuming illegal substances, or in any state of intoxication
    • Talk to friends and family about social media and kindly ask that they avoid posting anything about you online without your approval
    • Change all of your passwords if your spouse has access to any of your accounts or may know your password
For other suggestions or case specific advice, please consult with a qualified family law attorney to best protect yourself while navigating the divorce process. As I like to say, live like there’s no tomorrow, but post as if it may one day be read aloud in Court.