“Not everybody is careful that people who have access to their postings have been carefully vetted,” added Stutman.
Photos on Facebook have been used as grounds for divorce. South Carolina attorney Melissa Brown once presented a webinar to AAML members on social media evidence. One of her cases involved a woman who wanted to divorce her husband because she said he had a drinking problem. The woman was able to back up her allegations with a Facebook photo of the husband holding two bottles of alcohol up to his mouth.
“Generally, I just don’t see the benefits of [social media] in this situation,” said Newman. “When you are going through a divorce, you’re under a microscope.”
Newman acknowledges that social media can be an outlet for some individuals, but she encourages her clients to stay off. She says that people should think about how emotionally triggering that could be for the other spouse and even their children who could see it one day. It might seem tempting to be spiteful to exes, but it could incite them to seek revenge during a divorce settlement or custody battle.
But for some people, stopping the posts is easier said than done. Brown recommends divorce litigants stop posting party pictures, stop commenting about their daily activities, stop derogating their soon-to-be exes online and refrain from talking negatively about their children.
“Make sure you speak to an attorney and see if the things that you think are harmless definitely are,” said Newman.
Be Careful Deleting
Brown suggests that litigants simply deactivate their social media accounts, rather than deleting them altogether and permanently erasing information. Deleting information, in fact, could be considered spoliation of evidence, she said, and could hurt someone’s case.
Divorce litigants need only worry about their own posts to their social media accounts, according to Stutman. Those well-meaning posts, messages and tags from friends and family members may not hurt a litigant, since they are not as admissible as what the person puts on his or her own account.
“It’s not a general condemnation of social media; we all do things where we’re not generally thinking ahead,” said Stutman. “You really need to be mindful of what you’re putting there.”