Social Media Use During Divorce

Nearly 7 in 10 Americans use Facebook regularly, according to research done by the Pew Foundation in 2019. Social media, whether a Facebook wall, Instagram feed, or Twitter musings, has become an incredibly common method of self-expression for most people. We keep in touch with distant friends and family, share pictures of our kids, pets, and vacations, and quite often we use social media as a place to vent our frustrations.

It would be a mistake, however, to view the things you post on social media as private. Social media content can, and is used as evidence in court–even content that you may believe to “private.” If you are, or plan to be, involved in any divorce or other litigation, now is a good time to do two things: 1) review your social media privacy settings, and 2) cut back on your posting.

Review Your Privacy Settings

On Facebook, you can choose who sees your posts with a default setting, as well as changing privacy settings for posts on a case-by-case basis. Make “Friends Only” your default setting, and always be careful setting your privacy to “public.” Change the privacy setting for individual posts as needed if you would like to further restrict certain content to subsets within your friend list. You should also go through general security and privacy settings and evaluate if they are as restrictive as they should be. You can prevent your profile from being easily searchable, make your profile picture and most information viewable to no one but your friend list, and make what pages you like, places you have reviewed or checked-in to viewable to no one but yourself, and more. Also, an obvious way to increase your privacy is to change your Facebook name to not include your real last name. People often use a first and middle name only or nickname to avoid using their real, full name on Facebook. Do a thorough privacy review of your Facebook account here.

Twitter, in general, is extremely public. However, you can “protect” your tweets to be viewable by only those accounts you choose to allow access after they have requested to follow you. You may wish to refrain from using Twitter or choose to use a new, anonymous handle, as well as locking down or deactivating any existing accounts. Instagram is likewise generally seen as intended for public viewing, but you can make your profile private and force other accounts to request access, granting it only for specific, known accounts. Snapchat and TikTok similarly allow you to restrict access to who views your content; read more about how to modify snapchat’s privacy settings here and TikTok’s privacy settings here).

Is This Really Necessary?

In a word, yes. Ideally, you should stop posting on social media altogether. However, if you plan on continuing to use social media, it is important to take stock of these settings and restrict access as much as possible. But you should also be judicious in terms of what you decide to actually post, even with restrictive privacy settings. Screenshots live forever, and once something you have written or a photograph you posted is out there, it is always possible that it may be used as evidence at some point in your case. The more information that you share on social media that is publicly available to be viewed, even in “private” or member-limited areas, the more likely it is that an opposing party can compel you to produce your entire social media account in a court case, regardless of the privacy settings. It’s also possible that every person with whom you share content could be a way for an opposing party to obtain your social media posts . If you’re currently anticipating litigation, or involved in litigation, don’t just go and delete old social media content either; deleting content or entire profiles could be viewed as “spoliation of evidence,” or intentionally or through negligence destroying potential evidence in a case. You can deactivate profiles without deleting them, which may be something to consider. If you’re involved in a lawsuit, or you know one is coming, do not delete any content without first asking the advice of your attorney. In fact, it is highly advisable to proactively broach the topic of social media use with your attorney early on in your representation; they may have advice specifically tailored to your situation that, if followed, could save you headaches down the road.