Navigating the Courtroom in the Digital Era
Unless you are a fanatical luddite, an attorney can probably find or discover a treasure trove of evidence in your social media profile to use against you. And, more importantly, it’s entirely likely that your social media activity has attributed to the demise of your marriage. Managing your privacy settings isn’t enough. Everything you post could be discoverable. The question isn’t, “Can social media impact my divorce?”, but rather, “How much will social media impact my divorce?” So, how do you mitigate the damage of social media on your divorce?
If you’re going through a divorce, continue your existing social media habits (within reason).
As soon as you suspect divorce is on the horizon, you may, naturally, want to try to clean up your social media habits. However, your social media behavior before the divorce is as discoverable as your social media behavior during the divorce. If you never post and all of a sudden want to start posting about what a wonderful parent you are, don’t bother. Any attorney worth their salt can poke their way through that strategy. And, the inverse is true. If you always post about what a wonderful parent your spouse is and you all of a sudden stop, any attorney worth their salt can use the previous posts to bolster your spouse’s case. Just keep treating social media in the same way, unless, of course, you post things that could hurt your credibility or case.
Remember, everything you post can be used against you.
If you post things that could hurt your credibility or case, STOP. Regardless of whether your social media is private or not, everything you post could be discovered during the course of litigation. From the second you read this article moving forward, remember that everything you post can be used against you. Be mindful of what you post. Even innocuous posts can be used against you. For example, I once won a child support case where a party claimed to be unemployed. I used their regular complaints about rush hour traffic, posted on social media, to prove that they were regularly employed. Why else would someone commute during rush hour? Everything can be used against you.
Don’t try to delete your bad facts; deleting your profile is the worst thing you can do.
So, you’ve read this article and you think—I’ll just delete my entire social media presence. Whatever you do, do not try to hide your social media profile. If you go into a social media service/provider and try to delete your profile, you could be found guilty of spoliation of evidence. If you may be someday part of a divorce, do not delete your social media profile. The punishment is likely much worse than anything you’ve posted.
When in doubt, do not post.
The best advice I can give is to imagine that your mother is reading everything you post. Or, if your mother isn’t scary (lucky you!), imagine your boss is reading your profile. Or the President. Or the Pope. Or your Mother-In-Law. Imagine that the most judgmental person in the world is reading everything you post. And, if you would be concerned if that person read your post, do not post it. Take a deep breath, wait at least twenty-four (24) hours, and reevaluate your options. Is there a better way to relieve stress? Is there a better way to express your frustrations? Would you rather not say anything? It’s amazing how much perspective we gain after only twenty-four hours. When in doubt, wait and do not post.
Your social media use is complicated. If you have any questions regarding the correlation between your social media use and divorce please make an appointment with an attorney of your choosing. However, if in doubt, do not post any information until you can speak with an attorney. The attorneys at Griffiths Law are well versed in using social media evidence in Court and, if social media use is integral to your life, can help you mitigate risk.
Heather Strack’s practice focuses on high-conflict cases, jurisdiction issues, and cases that involve dealing with family-owned or closely-held businesses. Many of Heather’s cases involve domestic violence, child abuse, drug abuse (including marijuana), or alcohol abuse. Heather was honored as a Colorado Super Lawyer® “Rising Star” in both 2017 and 2018.