The Role of Facebook in Divorce Litigation

Although divorce is supposed to be about two people dissolving their union and custody is supposed to be about best interests of the children, parties in conflict are more often than not inclined to try to show the other is a bad person. Facebook and social media postings are turning up as exhibits in more and more of this litigation, even more than emails and text messages, because such postings often provide insight into these matters. Everyone has done something embarrassing in his or her life, and the addition of Facebook has allowed many of these memorable moments to be captured and published for friends (and frenemies) to share. Facebook can be fun, but many people post far too much information about their lives and the lives of people that will play a primary role in their child's life. Photographs, wall posts, comments and status updates could all be used to prove that a party to litigation is not being truthful or is an unfit parent. In short, Facebook provides a wealth of incriminating information. Furthermore, when it comes to social media, it may not be what you are saying, but what everyone else is saying about you. That's why it is more important than ever to remove any questionable content from your profiles.

Facebook has completely changed the way we share information, in both positive and negative ways. People do not think about who has access to their Facebook page but a decent attorney can find and potentially spin much of this information against you.

According to a February 2010 survey of the American Academy of Matrimonial Lawyers (AAML), 81 percent of divorce attorneys said they have seen an increase in the number of cases using social networking evidence during the past five years. Facebook is the unrivaled leader for online divorce evidence with 66 percent citing it as the primary source.

There are many dangers of Facebook being used in divorce and/or child custody litigation:

  • Ex-spouses updating or changing their relationship status may tip off the world that they are co-habitating with a boyfriend and/or girlfriend, thereby reducing their need for spousal support. Frequent updates could signal an unstable or volatile household for children.
  • Parents making alcohol abuse or drug use allegations against other parent are often able to discredit the other parent's denial of such use/abuse when they can present Facebook photos showing extensive drinking, partying and/or drug use.
  • Parents making allegations of cyber-stalking may be able to prove their claims by tracking the online movements of the other parent. With Facebook's new Side Ticker, it is easier than ever for friends or acquaintances to track your movements.
  • Parents making allegations of instability against the other parent, may be able to substantiate their claims by reviewing Facebook history to see whether the other parent goes on nonsensical rants or posts bad comments about other people.
  • Parents making allegations of alienation and derogatory remarks may be able to substantiate their claims by providing evidence of negative comments made by one parent against the other on Facebook.
  • Parents using Facebook to vent about their litigation may unwittingly give up strategy or inadvertently bias the court or counsel when posts second-guessing or bad-mouthing their judge or opposing counsel surface in court.

In order to avoid Facebook issues, users should always remember that Facebook is generally public information. With this in mind, users should proceed with caution. The best rule of thumb is to only post positive or factual information that one would not mind everyone in the world seeing and that cannot be misunderstood. If this sounds hard, it may be advisable to delete or deactivate your Facebook account right away. (Deactivation can be done while saving the content on your account for reactivation or use at a later time.) However, with awareness and attention to privacy settings, a Facebook account can be kept private. There are several different ways to protect your privacy, limit access to your personal information, and prevent people from posting potentially damaging material to your profile. After all, staying connected with family and friends is crucial during stressful litigation, ironically, Facebook can provide an easy way to allow this to happen if you follow the following steps:

  • Step One: Check Your Privacy Settings. Many people do not realize how much of their information is public in the absence of the correct privacy settings. Just because you do not post a photograph does not mean that it is not visible to the public. Photographs and/or posts in which you are tagged may be visible to the entire world, even if they do not show up on your profile. To ensure that you have control over this, you may have to adjust your settings to (a) ensure that your profile is private and (b) you are notified when people post using your full name, photo tags and/or wall posts. (This can be achieved through the "How You Can Connect" and "Timeline & Tagging" functions so you are able to review information like wall posts, tags, locations, etc. and accept them or ignore them before they become part of your profile and go live for others to view. You can also manage the privacy of your status updates, photographs and information using Facebook's Inline Audience Selector.)
  • Step Two: Check Your Friends. Limit the people on your friends list to people who you truly know and who are capable of keeping your confidences. You can also restrict access to information by creating a list of people that you do not want to see your posts. To the extent that you still want to communicate with people that you do not know as well, or who share all information you share, you may consider creating a different list, a more restricted list, for these people and limit the information available to people on this list. In determining which people should be on which list, it may be prudent to consider the friends of your friends and the level of access that they will have. It is important to be mindful that even if you limit the information available to the public, there is the possibility for your friends to re-post, forward or share information that you may have intended for certain eyes only. You can select who sees what, but you do not control what third-parties do with your information!
  • Step Three: Check Your Ex. Never make assumptions about who can or cannot access or see your profile. One of the most common remarks I hear from clients is that "my ex can't access my profile". I used to take this statement at face value until more often than not, the ex would show up with information from a private Facebook page that had been printed out either through a mutual friend or their child. The best policy is to assume your ex is reading everything you post.
  • Step Four: Check Your Kids. Kids are impressionable and can be sponges for information that is shared in their presence. Children do not have the ability (and many times the knowledge) to self-edit and they can easily repeat what they have heard. The negative things you say can be repeated or even posted by your children. If your children share your computer, they may even be able to view and/or access your profile. If they learn your password, they can share your profile or pull it up in the presence of other family members or share your private information with the other parent.
  • Step Five: Check Your Kids' Profiles. More and more children are getting Facebook accounts. However, if your child is under the age of 13, it is not legal for them to have a Facebook account. The Federal Children's Online Privacy Protection Act (COPPA) mandates that online and social media sites collect information about users. (Although there is really no way to verify this information.) To the extent your child has a Facebook account, the court will want to ensure that you understand how to protect your child's online privacy and that your child understands the consequences of their posts. In protecting your child's privacy, the court will also be weary about personal information that a parent posts or shares about their child. This is especially true if the information is posted in a publicly accessible area. Even through your Facebook postings, it is important that your child's privacy rights be respected and maintained at all times.
  • Step Six: Check Your Etiquette. During litigation it is best to stay under the Facebook radar. This may mean staying away from controversy, fighting with others or participating in emotionally-charged rants. One of the best ways to achieve this is by reading everything multiple times before you hit the send or post button and refraining from posting while in the heat of an argument.