Whether or not social media is a positive or negative force in our modern society is a question for philosophers and experts. But, as a family lawyer, I am here to tell you that social media can and will be used against you in a court of law.
This is a true story.
This morning, I walked into court for a custody trial on behalf of my client, the mother. Part of my evidence was a video of an Instagram story, totaling over 7 minutes in length, posted publicly on his unprotected Instagram account. The story was laced with expletives, the individual driving a vehicle (with his knee, no less!) while on a suspended license, denigrating the mother of his children, and drinking what appeared to be an alcoholic beverage while operating the vehicle. When I introduced this video into evidence, the father was appalled that I had somehow found this bit of information, much less used it. It was all too readily available.
This is just one example of what I see in my work as a family law attorney every day. For better or for worse, a “public life” via social media has become a way of life for many of us. We post maps of our morning run routes, photos of our latest travels, videos of our children’s latest antics, and so much more. The need to post, re-post, share, and/or comment on Facebook, Instagram, Snapchat, Tik Tok, or the latest social platform du jour has become so commonplace and interwoven into our daily routines that many times we fail to recognize that these public displays are, well, public.
It is important to catch ourselves and remember that what we post online is not just published in the privacy of our own accounts, even despite our best intentions and privacy setting designations. Once information is posted, shared, or commented upon, it lives on in perpetuity for others to scrutinize … even the judge in your family law matter. In this age of endless sharing and compromised privacy, our clients are often caught off-guard when their ex-spouse confronts them with social media posts.
It is important to remember that your actions online can (and will!) be used against you as evidence in the courtroom. In fact, so long as your ex-spouse can properly “authenticate” social media posts or messages – in other words, establish that messages were originated by the posting party at a particular time that is relevant to the proceeding and are presented to the court in their unaltered state – the court may very likely consider such evidence in your divorce, custody, and support matters.
Not only can this evidence be used, but it may have a substantial impact on your family law case. It’s easy to see the connection between social media and your family law litigation matter. After all, family law deals with the core aspects of one’s life, which is what most of us tend to broadcast on social media. However, as we document events in our lives, big and small, the best practice during your family law matter is to practice the “less is more” approach. Before you post, ask yourself the following:
1. Should I post at all?
Tempting and habitual as it may be for most of us to post on social media, doing so during your litigation matter is at your own peril. I often advise my clients to assume that any communication relevant to your litigation – be it text messages, e-mails, voicemails, etc. – may one day be played or read aloud in a court of law. Social media is no different. If you are in open family law litigation, ask yourself whether you would be okay with the contents of your intended post being played in open court and scrutinized by the decision-maker of your matter. If not, opt-out.
2. Is posting my location or travel plans and photos a good idea?
In a support case, I represented my client against his ex-spouse. His ex-wife represented to the court that she was living paycheck to paycheck, in significant debt, and was unable to subsist without substantial support from my client. This young woman’s social media account told a different story. There, I found multiple pictures of her on beachy vacations at extravagant resorts, showcasing her latest purse purchase and even a before and after of her latest cosmetic procedure.
It may be fun to “check-in” at your favorite pricey restaurant, a luxe hotel, or a great vacation destination. Just remember that sharing your whereabouts can come back to haunt you. Information about a client’s travel or time spent away from children can be used against them in certain circumstances in custody matters. Likewise, the perception of a “big spender” lifestyle can cost you in your support and divorce cases. When it comes to posting about your activities, it is better not to do so.
3. Is this photo portraying me in a way I’d like a judge to see me?
Thinking about taking an interesting new selfie? Think again. That photo of you or activities in which you are partaking may not give the right impression. Posting photographs of yourself engaging in activities that may be misconstrued or taken out of context is also risky business. Likewise, while kids really do the darnedest things, posting photos or videos of your children engaged in activities that might be considered risky or inappropriate for their age (read: do not post photographs of your children holding open beer containers) can wreak havoc on your custody matter.
Who hasn’t shared a hilariously inappropriate meme with their friends and co-workers on social media? Social media wouldn’t be fun without it. That said, consider the nature of the meme or humor you are sharing. Just keep in mind the “grandma rule”: if you would be embarrassed to have your grandmother see what you just posted, then don’t post it.
Remember that in your family law matter, you may be putting core decisions regarding your life in the hands of a judge who is, for all intents and purposes, a stranger to you. That jurist is going to be making decisions regarding your credibility and judgment as part of your matter. Whether it is posting a photograph or sharing an inappropriate meme, think twice before sharing risqué information during the pendency of your legal matter.
4. Do I need to voice my frustration publicly?
Understandably, the actions of your ex-spouse and his or her attorney, family, or a new significant other may be frustrating to you. It’s tempting to voice your frustration in a forum where others may sympathize or to reveal those seemingly wrongful actions in your social circles.
However, sharing private disputes in a public manner may cast an adverse perception on you rather than your ex-spouse. Believe me, I have introduced into evidence Facebook posts from a private divorcing parents group of highly inappropriate statements being made against my client, the judge presiding over our matter, and even myself, for the entirety of Facebook to see. Needless to say, this does not pass the grandma rule.
5. Should my family and friends do any of these things on my behalf?
The answer is NO. Many times family, friends, and significant others believe they are showing support and solidarity by posting about your negative experience with your spouse or the court system. Unfortunately, while those posts are well-intentioned, they may be highly inappropriate, particularly if your children have access to the information they share. If your child sees Grandma posting about their mother in a derogatory fashion, with others chiming in in the comments section, this will certainly have a negative impact on your custody matter.
No, social media is not your friend. The best free legal advice I can offer to anyone in a family law matter is: if you don’t want a judge to see it, don’t post it.
Inna G. Materese concentrates her practice in all areas of family law, including but not limited to, high-asset divorce, complex custody issues, protection from abuse, and support matters.
Inna has successfully represented clients in the negotiation, litigation, and resolution of their family law matters in Montgomery, Bucks, Chester, and Philadelphia Counties.
Inna focuses on helping her clients achieve their individual goals through a collaborative, resourceful, pragmatic, and compassionate approach.