The use of social media in family law litigation has increased over the past decade. Such litigation can include content from Facebook, Facebook Messenger, WhatsApp, Snapchat, YouTube, Twitter, LinkedIn, Instagram and MySpace, as well as browsing history, text messages, e-mail and essentially anything that a party posts online or otherwise.

Social media can be used as evidence to demonstrate “bad behavior,” parenting abilities, behavior contrary to a court order, cohabitation after spousal support has been ordered, spending habits, employment or employability and more.

Courts often allow social media as evidence as there is, arguably, no expectation of privacy on social media networks, the information can be relevant, and allowing the evidence does not violate any privilege.

The impact of social media evidence can vary greatly depending on each court, what the social media posts actually show and the issues involved in a case. Some courts unfamiliar with the technology may limit what social media posts are allowed into evidence. Other courts will allow almost all relevant social media evidence.

If you are separated or may become separated, are going through a divorce or are involved in any family law litigation, including post-decree or visitation issues, you should strongly consider staying off of social media completely to protect yourself.

Further, it is important to keep in mind that even after a divorce has been granted or an order issued, you may find yourself back in court to change and/or modify a prior court order. So when posting anything online or putting anything in writing, consider how it would reflect on you if it were to be presented at a hearing.

What Not to Do During Family Law Litigation

Although it would be best to avoid social media and incriminating text messages and e-mails in general, some specific ways to protect yourself include avoiding the following:

• Posting pictures or information about expensive vacations or purchases.
• Accepting friend requests from unknown persons or mutual acquaintances during litigation.
• Posting content about any sort of drug or alcohol use or unsecured weapons in the home.
• Posting content that is contrary to previously made statements and/or promises. For example, posting pictures on a hike when claiming you are disabled and unable to work.
• Assuming that posts are temporary. Some posts can be stored on servers indefinitely.
• Leaving your personal laptop, tablet, cell phone or computer in an area where your spouse or even children can access your accounts, text messages or e-mails.
• Posting content about your children, including their location, the location of their school or daycare or conversations you may have had with your children.
• Posting about the current litigation in any way, including any mention of your spouse.
• Posting content that shows your home in an unsafe or unsanitary condition.
• Making incriminating or inflammatory comments on other pages, articles or websites.

What to Do During Family Law Litigation

• Change all passwords to all accounts. However, be advised that courts have ordered the production of credentials in some cases.
• Create a new, secure, e-mail account through which you can safely contact your attorney if you prefer to use e-mail.
• Stay off of social media as much as possible.
• Advise all of your friends, family and significant others to avoid posting, sharing or “tagging” you on social media platforms.
• Advise significant others that may be relevant to the litigation, such as fiancés or live-in boyfriends/girlfriends, to limit their social media activity as well.

You should always be aware of the content of your social media activity. This is particularly important if family issues lead you to believe that litigation may be possible. Following these steps can help you avoid providing evidence that may be used against you.

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Jacqueline Johnston is a family law attorney in the Youngstown office of Harrington, Hoppe & Mitchell. She can be reached at jjohnston@hhmlaw.com or (330) 744-1111.