What should you put on Facebook during your divorce? Nothing you wouldn’t want the judge to look at. I ask my client if they have access to the other party’s Facebook during a contested case, and the answer is almost always ‘yes’. You may have defriended your almost ex-spouse, but stop and think about it. How many friends do you have on Facebook? Probably a few hundred. How many of them are ALSO friends with your almost-ex? You should NEVER assume your Facebook/Twitter/Instagram will not show up in court. My favorite use was a custody battle with a woman who swore she may have an ugly past, but she had completely quit using drugs or drinking, and would be a good mom if she got custody. Her Facebook cover photo was of her drinking beer out of a bong, and it was less than a week old. The court called a break to do a drug test, and she disappeared rather than be tested. Facebook is an attorney’s best source of exhibits in a nasty trial.
You should NEVER assume your Facebook/Twitter/Instagram will not show up in court.
So, if your social media posts can be used against you in divorce court, does that mean you should go back and “sanitize” them? Should you take down incriminating pictures and delete the nasty remarks? No. In fact, you can be sanctioned by the court if you do. The deliberate destruction of evidence relevant to a lawsuit is called “spoliation”, and there have been some heavy penalties levied by the courts for engaging in it. So now that you know you can’t go back and scrub it clean during your divorce, all the more reason to use some discretion about what you post in the first place.
You can be sanctioned by the court for removing old posts.
So, in addition to Facebook posts, what else makes for fun exhibits at a divorce trial? Some actual examples I have personally introduced at trial, or had offered against a client would be: a receipt for an economy sized box of condoms, dead lice that had been picked out of a child’s hair, certified copies of felony convictions, an inch thick “paddle” drilled with holes, intended to keep children in line, an email stating “I don’t care what the judge says, I am making my own decision”, and a pair of lacy women’s underwear found in the glove box of a car. Most people do not realize that bad behavior tends to leave tell-tale signs
