Social media is a regular part of life for many people. That also means that social media can affect your divorce. For regular users, we check on what friends are up to and learn about local events. We post about our trips, our pets, our favorite restaurants or cooking accomplishments, about our kids’ achievements. Some post about politics. And some people post about specific details in their personal lives, whether that is to share that they are sick, a parent died, or when they have conflict with others. Some seek advice of friends on these issues. Some folks use social media to vent.
If you’re soon to be divorced, all these posts -- and your comments on posts of others and your private messages -- are admissible during your divorce proceedings.
Right now, it’s best that you be as fully informed as possible about what can happen in your divorce related to your Facebook, Instagram, Twitter and any other social media you use. You might get along fine with your spouse right now and you’ve simply grown apart, so you’re planning to divorce. You’re ready to separate ways amicably. But something may happen along the way that suddenly changes the direction: things can go south. Fast. That’s why it’s important to know everything you can about social media during divorce. And, if you know more than your spouse does, that can work to your benefit… just in case a smooth divorce ends up as a battle.
Here are 9 things you should know about social media during divorce, plus a few added tips to ensure you are ready for anything as your divorce proceeds.
Sometimes, one of the first questions clients ask us is “can social media be used in divorce cases?” because they make frequent use of their accounts. Colorado is a no-fault divorce state in which a divorce happens when both parties say the marriage is “irretrievably broken” (C.R.S. §14-10-106 (I) and C.R.S. §14-10-110). This means your use of social media won’t be cited as a cause of your divorce. However, using social media during divorce can impact the outcome of your divorce proceeding.
The information you post to social media can influence several elements of a divorce agreement. Your posts can relate to your fitness as a parent, or your income and assets. Maybe you posted about going to a party with friends, or how you spent a night out on the town. You may have posted about buying something lavish. Or, you may have posted about your emotional struggles.
If your spouse knows a divorce was a possibility, they may have started keeping information that would influence how much alimony you might receive or whether you are fit to have custody of your children.
Our attorneys advise that staying off social media during your divorce is the best decision you can make. When you’re going through such a stressful, difficult time in your life, your emotions may overrule logic. This is not a time to let that happen. Don’t vent your anger, frustration and sadness on a platform that everyone can see. And if you’re glad about your divorce, don’t celebrate the end of your marriage. Anything you post will be public record and can influence the structure of your divorce agreement.
Even if your posts don’t directly impact your divorce proceeding, they can also cause animosity or make an already contentious relationship even more divisive. Perhaps your uncontested divorce is moving along smoothly until your spouse sees a negative post you made about them. Or perhaps you’ve posted about moving on and that you have an interest in another person. Any number of things you do or say could trigger a reaction. Then, suddenly, your divorce becomes anything but smooth. Now, every step of the way, there will be pushback from your spouse. This adds stress to your divorce process and may mean more legal hours dedicated to battling with your spouse. One post can literally cost you money.
If you have children, your social media posting can harm your custody agreement substantially. It can also impact the amount you either have to pay or will get in child support. It may impact how an out-of-state move could affect your visitation arrangements. Even if your divorce remains amicable, your spouse’s attorney is paid to fight for what will most benefit your spouse and your children. In any Colorado custody case, the judge will always rule for what’s in the child’s best interests. If something you post indicates it will impact your ability to be a safe, secure, loving parent, the judge must make a custody or visitation decision based on all the available information.
When in doubt, don’t throw it out. Deleting social media during your divorce can create legal problems for you because it may show an intent to hide something. It can even be considered destruction of evidence.
While our divorce attorney strongly advises you to refrain from posting on social media during your divorce, you should not destroy any information that is already in the public domain. You don’t know who has that information and may use it to make a case against you when it comes to a custody battle. Social posts might show that perhaps you don’t actually need the support of a monthly spousal maintenance check. If your spouse or your spouse’s attorney finds out you deleted a post on one of your social media accounts, it may be a red flag that you have something to hide. That will simply draw more attention to what you removed.
If your spouse or your spouse’s attorney finds out you deleted a post on one of your social media accounts, it may be a red flag that you have something to hide. That will simply draw more attention to what you removed.
Some of our clients wonder, can Facebook private messages be used in divorce? They sure can. Just because it feels private when you confide in your friend how angry you are about what your spouse did earlier that night, this doesn’t mean it is legally private. While it’s possible these messages will not show up in your case, it’s safest to assume they will. The trend of private messages and texts being used in divorces is increasing; and, for some judges, the standard by which they decide Facebook messages can be admissible in a divorce case relates to privilege. Your attorney may need to prove that your messages are legally privileged and thus are protected from being turned over to your spouse and their attorney. It’s safest to assume that you will be compelled to turn over not just every Facebook message, but every DM in Twitter and every text you’ve sent.
Perhaps you realize that launching into a tirade about how your spouse annoys you or how horribly they treated you over the weekend isn’t a good idea. But there are other ways using social media during a divorce can be a problem. As the adage goes, a picture is worth a thousand words. So, even without posting a word, an image that captures you having a beer with friends at a local bar, or hiking with a group that includes a person your spouse believes you’re secretly dating, could affect your divorce.
You have control over what you do or do not post, but as long as you spend time with others, anything you do or say can end up on social media. What’s in the past is done. Your family or your friends may already have pictures or videos of you in their feed that could affect your divorce, either by angering your spouse or by hurting your chances to get custody.
You may not have control over others’ social posts, but you do have the ability to choose whether or not to share your feelings and concerns with them. They will likely understand the great emotional strain that you’re under. When you point out what’s at stake for you and your children, they will likely be mindful of anything they post to their social media.
Even though you may have talked to those you know, it’s best to be extra cautious. As soon as you are considering divorce, be mindful of any social setting you’re in and what you’re doing. You can let your family and friends know that you don’t want them to post pictures of you without asking first. Many people will respect this request. We all understand how it feels to find a less-than-flattering picture of ourselves on someone’s wall. However, even if you feel confident others won’t post an image without asking you first, you can’t be certain they won’t. So, you may want to be mindful that anytime you’re with others, pictures from that event or gathering could end up online.
As we’ve made clear, social media posts can be used during a divorce. That includes posts on other people’s social media accounts.
If you get a new friend request after you suspect your spouse is planning to divorce you, or you believe your spouse knows you may want a divorce, be cautious. Even if you don’t expect your divorce will be contentious, your spouse may want to have some tricks up their sleeve, just in case. So, assume any new friend requests could come from someone who is more aligned with your spouse than you.
Remember, social media is public. Anything you post, even when it’s not on your own account, may make its way back to your spouse and their attorney. All our guidance about what types of content to avoid posting on your wall apply to comments you make on the posts of your friends and family. If possible, try to refrain from posting comments as soon as you know you’re planning to divorce, or as soon as you suspect your spouse is. This includes Likes. Avoid that heart, that thumbs up, that frown or exclamation point. Even an emoticon reaction to someone else’s post might convey information you don’t want to become part of a custody battle or to influence your child support agreement.
You may have thought through many ways a social post could impact your divorce or custody agreement. However, there may be other elements you haven’t considered. Here are some examples of how social media can affect your divorce:
As soon as you start thinking about getting a divorce, or as soon as you suspect your spouse might be considering divorce, immediately consider changes to how you use social media. Here are some quick additional tips of how to do that:
If you’re an avid user and post multiple times a day, and you suddenly stop posting, it may get the attention of your spouse (or friends and family, some of whom will be shared with your spouse). Be ready to explain why you make this sudden change. While we advise that you err on the side of caution and stop posting entirely, if you feel this will send up a red flag you don’t want your spouse to see, consider changing the types of posts you make. Before you post, carefully evaluate every share, every word, every image for how it might hurt you in a divorce. Consider that a sudden change in your posting habits will also draw attention of friends and family.
Remember, these friends and family members talk to your spouse, too. If you don’t want others to know you’re considering a divorce, be cautious about changes you make.
If you feel you should continue to use social media during your divorce, or you simply don’t want to completely move off social media, stay with positive posts that aren’t about any inflammatory issues. Avoid posting about any events you take part in. Try to avoid posting any pictures of yourself or your activities.
Some of the technical settings in social media platforms may be wise to use, but don’t let them give you a false sense of security. You should take the step of changing your passwords, just in case. That way, if your spouse did know your password and could then have accessed your private messaging, you’ve now prevented that issue. This can be of help during the divorce process to prevent added emotional blowups. However, depending on your situation, those messages may come out later in the divorce proceedings anyhow.
Exercise caution every time you post or interact anywhere on social media. It is wise, however, to double check your privacy settings to ensure that your posts aren’t publicly available. Double check who you have as friends. Are there any who might side strongly with your spouse and look hard to find issues with what you’ve posted? Be mindful of that, but if you unfriend or unfollow that person, they may wonder why. Try not to raise suspicions.
Check all your social accounts on all of your devices to be sure you are not logged in. This will prevent your spouse from picking up your iPad and clicking on your Instagram. Maybe you keep your phone with you and that’s what you use for all your social media platforms, so you forgot that you also have those apps on your tablet, too.
If you take these tips to heart, you are in a much better position than your spouse as you begin to move through your divorce process. Consider all that we caution you against and how your spouse might post information on their social media that could help your case but hurt theirs.
Perhaps you’re not out for blood and you’d like your divorce to proceed as smoothly as possible. You may not need to bring up any social media posts made by your spouse. It’s good to be prepared, just in case. Consider taking some screenshots of posts you think could end up benefiting you and your children if you need them. Conversely, you may feel strongly that if your spouse gets any custody of your children at all, they could be harmed. In that case, you should look for social media posts that can help show why you believe your spouse isn’t a good parent. Document as much as you can. That way, it won’t be your word against that of your spouse. Instead, you’ll have something to show a judge.
We provide you several ideas on how to manage your social media accounts as you go through a divorce. However, because each situation is unique, the best legal guidance will come directly from an attorney. Rather than worry about whether or not you’ve made the right choices regarding what to post or not post, talk to a divorce lawyer. Having a knowledgeable guide will give you a sense of relief. Our attorneys have helped hundreds of clients, and almost all of them had social accounts. We know how social media is used during the divorce process and how it affects divorce, custody and visitation arrangements. Count on our experience to guide you and take the guesswork out of the equation. Give our team at The Cossitt Law Firm a call at 970-488-1887.
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