Facebook is a big part of modern life—they have over 2 billion “active” users who log in at least once per month. The law, just like many other aspects of life, has had to adapt to social media. Since 2015, Facebook can be used to serve process in New York if the defendant’s address is unknown and there is evidence they regularly check their Facebook account.
People post a lot of information on social media that can be particularly useful in a litigation context—their comings and goings, current photos, life events, thoughts, and perceptions.
In particular, divorce cases and personal injury cases tend to use social media evidence, due to the personal nature of those types of cases. They don’t ever imagine it could be used against them, so most people don’t consider the potential litigation impacts when they post.
The Washington Post reports that Facebook is cited in 1/3 of all divorce cases. Social media can be a treasure trove of evidence in these cases. Facebook messages can contain evidence of infidelity; sales of items on Facebook Marketplace can demonstrate an attempt to liquidate assets and hide cash.
THINGS NOT TO DO WHEN GOING THROUGH A DIVORCE:
Vent About Your Ex
Among the factors set out by Florida law for judges to consider when making time sharing (custody) determinations is “the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship . . . “ and “the demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child . . .” That ill-considered post trashing your ex doesn’t look good for either of those factors. Most Marital Settlement Agreements contain language prohibiting both parents from speaking ill of the other in front of the children. It’s hard to convince a judge or magistrate that you don’t when you have no problem posting it on social media.
Brag About Your New #singlelife
Pictures of you out late with friends, drinking alcohol (or partaking in other substances) don’t look good for you and could be held against you as the judge considers timesharing arrangements. Posts about things like vacations; buying lots of new things (for you or your child(ren)); dining out in expensive restaurants; dating; engaging in side businesses and the like will at best, make it look disingenuous if you ask for alimony or increased child support or potentially make the court question whether you have been wasting marital assets.
Delete Posts You Have Already Made or Deactivate Your Page
If you delete posts you have already made without preserving the evidence in the event of a discovery request, you could be subject to claims of spoliation of evidence. In fact, your lawyer could also be subject to discipline for advising you to do so. The best course of action is to use privacy settings to hide any posts viewable by the public. This preserves the posts without volunteering information to your ex and their attorney that they could potentially use against you. Keep in mind that they still may request it, however, so make sure that any posts you create meet the guidelines above, no matter the privacy settings.