Posted in: Divorce
Posting to Facebook during a divorce may be one of the biggest mistakes a party to a divorce proceeding can make. Divorce attorneys love Facebook, and this is particularly so in Pennsylvania, where courts have repeatedly ordered access to a party’s account when it is deemed likely to contain material damaging to that party’s position. According to the American Academy of Matrimonial Lawyers, over 80 percent of the country’s divorce attorneys rely on social media for easily obtainable courtroom ammunition, and two-thirds of them cite Facebook as the “primary source” of evidence in a divorce.
Unless you are savvy enough to take advantage of Facebook’s privacy settings, your content is laid open to users around the world—including your spouse’s attorney. Yet, even the strictest privacy settings fall short of foolproof security. Though you’ve granted access to your timeline to no one but Facebook “friends,” those friends are free to use your content in any way they wish.
For example, you update your status and post a photo. A friend shares and tags the photo, and copies and pastes your status onto his own unrestricted page. Your spouse’s attorney can now access this material almost as easily as if you had made it public yourself. And if the shared material so much as suggests the existence of still-private content that could be helpful to your spouse’s case, the court may order Facebook to turn over your account. This may include not only your private photos and messages, but even material you deleted, since deleted material remains inFacebook’s backup copies for up to 90 days after you remove it.
What sorts of postings do you need to worry about? Consider just a few of the many issues routinely faced in a Pennsylvania divorce proceeding:
Property Distribution: In determining the equitable distribution of marital property, a court may consider, among other things, the skills and employability of the parties. Your spouse may have advised the court that she has been unable to find a job. But she’s bragged on Facebook that she has deliberately refrained from seeking employment in the hope of increasing her share of the assets. Her revelation will affect both the asset distribution and her credibility—and compromised credibility affects all of the issues in a party’s case, not just those in which it arose.
Alimony: Employability may also be relevant in determining alimony, so that the same sort of Facebook gaffe discussed with respect to property distribution applies here as well. Though marital infidelity is not considered in the division of property, it can be taken into account when setting alimony. If suggestive photos of you and someone-not-your-spouse appear on your timeline or that of a friend, your after-divorce income may be lower than you’d hoped. Seemingly innocent content may get you in trouble, as well. If one of your “friends” posts to your page far more frequently than any of the others, the regularity of his visits may tip off your spouse’s attorney, and can be enough to convince a court to order access to your entire account, because the public postings suggest the possibility of private communications that might be helpful to your spouse’s case.
Child Custody: Here is where your behavior—and your perceived behavior—can matter the most. A Pennsylvania court will base its child custody determination on the best interests of your child. The level of conflict between you and your spouse (including any attempts by one to turn your child against the other), which of you is more likely to maintain a loving and stable relationship with your child, and which of you is more likely to encourage a continuing relationship between your child and the other parent, are among the many factors the court will consider. It isn’t difficult to envision Facebook postings that could have an impact upon this most important of issues: photos of you with glazed eyes and a drink in your hand, your child in the background, fighting for your attention; boasts that you intend to punish your spouse in any way you can; gleeful admissions that you’ve just about managed to convince your child that he’d be better off living with you; or truly innocent photos and statements that can be distorted and misconstrued.
Facebook offers commiseration and release, and the sort of immediate gratification people crave in today’s world. But the attendant risks are substantial—and not worth taking—when you are in the process of getting a divorce.