For many, social media is an integral and important part of their lives. People scroll through and post on sites like Facebook, Instagram and TikTok daily. Although there can be enjoyment and benefits in this activity, for those going through a divorce, social media can be detrimental in ways we might not consider.
Over the years, I have seen social media both help and hurt clients. Often, it’s detrimental when one party makes an imprudent post which is then discovered and used against them. During the divorce process, there are several types of social media posts to be aware of.
Exposes Relationships
People routinely post pictures of their daily activities on social media, and while usually this is a benign practice, those pictures can potentially expose extramarital relationships and funds spent by a spouse on that significant other.
I have seen this happen on many occasions — pictures are posted of a client or client’s spouse at a restaurant, an event or on a trip with the other person. Sometimes, that relationship is known by the other spouse, but oftentimes, it’s not.
Those social media posts can not only reveal an extramarital affair, but they can also disclose the location where the two people spent time together, which can lead to that location being subpoenaed. Furthermore, those posts can result in the issuance of a subpoena to the significant other, as well as an investigation into the nature of their relationship and the building of a dissipation claim. In Illinois, the dissipation of marital assets is when one spouse spends the married couple’s money on things that don’t benefit the marriage including extramarital affairs. By reviewing bank and credit card records, one is now able to discover money spent on the significant other during that period of time and beyond.
Social media posts themselves regularly provide concrete evidence of where a person was, who they were with and what they were doing. If not for the post, a spouse may not have even been aware of the travel or stay or have the evidence to refute the other spouse’s contention that the trip was business-related. Thus, one simple post allows the other party to get the information needed to prove the nature of the relationship and begin the process and analysis for claims of dissipation.
Be mindful that even if a party is very careful to avoid posting pictures themselves or sets their posts to “private,” their significant other may not be so prudent, or screenshots of “private” posts can become public or be forwarded to the other party. When divorcing, it’s best to act as though someone is always watching, largely because, in most cases, that’s likely the case. There’s always a chance, despite all precautions taken, that something meant to be private will be discovered and shared with your spouse or their attorney.
Reveals Cohabitation
Social media posts can also be used as evidence in determining or reviewing maintenance. For example, if a spouse posts pictures of a residence they share with a significant other, those photos or posts can be used to establish the nature of their relationship and, thus, cohabitation. That evidence could form the basis for that party’s request for maintenance or continuation of maintenance to be denied or terminated.
Discloses Assets
Beyond revealing activities, social media can also uncover assets a party has failed to disclose. I’ve seen instances where either myself, my client or experts have discovered existing assets that were otherwise unknown and not previously disclosed by the other spouse as a result of careless social media postings.
When a spouse posts a link to a company, for example, a judicious lawyer will investigate that company. More frequently than one might think, it’s discovered that the spouse has an ownership stake or other interest in the company.
I always advise my clients to be honest and upfront when disclosing assets. When someone hides assets, they’re just a social media post away from an attorney like myself finding them and using their deceitfulness against them. Not only is the undisclosed asset revealed, but the spouse who attempted to hide the asset has also now significantly negatively impacted his or her credibility and is subject to significant penalties and sanctions including attorney fees for their attempt to conceal the existence of the asset.
Causes Child Custody Issues
Social media postings can also significantly impact and affect child custody determinations. You might think posting a note about enjoying an evening out with friends and cocktails would be harmless, but if you’re in the middle of a divorce and child custody or parenting time is in dispute, the other side could use that post to prove or at least portray you as someone who is more interested in partying than being a good guardian of the child. Even if you were engaged in normal, innocent socialization, it could potentially hurt your case.
Escalates Contention
Beyond the evidentiary damage of social media posts, they can cause a radical shift in the divorcing spouses’ emotions — causing delays, increasing the costs of litigation and, otherwise, derailing settlement negotiations. If a party posts disparaging comments about their spouse, for example, it could anger the other party and cause them to reconsider their settlement posture.
Additionally, those posts and pictures can cause harm outside of the case: If a spouse posts a picture of themselves with a significant other, that significant other, his or her spouse or other people who know them can and often will be subpoenaed which will likely cause friction in those relationships as well.
Best Practices
In general, the best practice when divorcing is to minimize social media posts and the like. Under questioning, a witness’ recollection as to an event or conversation can be disputed. However, it is often very difficult to explain away a social media post.
As I tell my clients, as soon as something’s put in writing or shared via social media, it can be either used for or against them — and will likely be marked as an exhibit to a petition or motion or presented as evidence in a hearing or trial. To be safe, share with your attorney any post or communication prior to sending or posting it. Educating clients on the appropriate use of social media and its pitfalls is an important part of my role as a divorce attorney. Remember — once you post it, you can’t “take it back.”