Some attorneys recommend that all their clients deactivate all their social media accounts as soon as they file for divorce or file any family law petition. That is because their clients sometimes make indiscreet comments or posts on their social media, and those can be used as evidence.
Your Facebook and Instagram posts, your tweets, your TikToks — all of these can be brought into court, in most cases. The exception may be if the post was obtained illegally or deceitfully in some way. You should assume, however, that your ex can see whatever you post on social media, even if you are no longer “friends.” Even deleted posts can be recovered by subpoena, in some cases.
If you are involved in a contested divorce, a parental decision-making hearing or a child support case, social media evidence could be brought in to prove any of a variety of issues, such as:
- Cheating
- Employment and work history
- Spending habits
- Parenting habits
- Negative comments about your kids’ other parent
If you claim you cannot afford your child support or alimony, for example, social media evidence could be used to show that you have been spending freely. If you have been making negative comments about your ex, that might not look very good to a judge who is considering whether you can be neutral in front of the children.
An Arizona Court of Appeals case, Nash vs. Nash, has already established that parents may not be free to disparage their exes on social media. Many parenting orders contain a provision prohibiting each parent from disparaging the other in front of the children. The court found that unflattering social media posts may at some point be seen by the children.
Don’t selectively delete past posts
If you think you may already have made a social media post that could be used against you, do not delete it. This could be viewed as evidence tampering. Instead, bring it to the attention of your lawyer.
You may, however, deactivate your social media accounts altogether. You may wish to do so, if you worry that you will be tempted to say something unwise.