Attorney Jacqueline Newman encourages her high-net-worth divorce clients to stay away from social media.

“It’s very hard to take things back these days,” said Newman, the managing partner at Berkman Bottger Newman & Rodd in New York, specializing in high-net-worth matrimonial law.

Newman said she’s seen her share of seemingly harmless social media posts that end up hurting people going through divorce—for example, she had a client who over-shared how angry she was at her cheating husband on social media, and when the husband was later passed up for a promotion, his attorneys argued that it was because of the wife’s negative online comments.

Treasure Chest Of Evidence

The American Academy of Matrimonial Lawyers (AAML) reported in 2015 that 97 percent of its surveyed members had seen an increase in evidence originating from wireless devices such as smartphones; 67 percent responded that most evidence came from apps. Facebook topped the list at 41 percent followed by Twitter with 17 percent; Instagram came in third, and apps like Find My iPhone, Snapchat, Google Maps, WhatsApp and Tinder came in under 10 percent.

Attorney Michael Stutman, the founding partner of Stutman Stutman & Lichtenstein in New York, says, “The treasure chest that was once social media and online presences has seen its content diminished fairly significantly.” It seems people are wising up to the woes of social media.

Even though the horror stories of social media posts backfiring on their owners pervade headlines and even viral social media content, people continue to find themselves in sticky situations. Stutman recalled a case where a husband wanted to reduce his alimony payments, reasoning it was because he could no longer afford them. Unfortunately, the husband didn’t consider that those seemingly harmless Instagram photos of him and his girlfriend skiing in Japan and his trip to see Hamilton would throw his finances into a different light during his divorce.

Whether the fight is for spousal or child support, custody or visitation rights, property and assets or a testament of a litigant’s character and credibility, social media accounts can either support someone’s case or damage it.

Attorneys can and will dig up online evidence to help their clients. A divorce is technically a lawsuit—it requires a spouse to file a complaint in order for the legal process to start—so spouses and attorneys need documented evidence to get what they want out of a settlement. With high-net-worth clients, a lot of assets tend to be involved, and they might have to testify in court. Some attorneys will use third-party consultants like private investigators or they may turn to e-discovery tools, sometimes called social discovery tools, that allow users to cast a wide search net to find someone’s online footprint.

Stutman says most of the time the information still comes to him by way of his clients. Litigants most likely have access to each other’s social media accounts, making it easier for them to gather evidence on each other. Divorce litigants will also turn to their spouses’ friends and acquaintances to dig up information.

“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.”