Facebook® has been hailed by many as the best online social networking service, enabling its users to connect with each other, and instantly exchange messages, post photos and receive and post status updates, with relative ease. However, in the past few years, numerous studies have been conducted showing a correlation between social media and divorce. Presuming that these studies are accurate, your Facebook page—along with Tumblr®, Twitter®, Instagram®, and countless other social media sites— could be one of the most powerful forms of evidence to be used against you during your divorce case. Indeed, the evidentiary effects of social media have been discussed on the JGL Blog. But note, as your Facebook account can be discovery in litigation, do not delete your Facebook or other social media pages prior to consulting with an attorney! Doing so could result in sanctions for destroying evidence.
Additional Reading: Should You Delete Your Social Media Accounts During Divorce or Custody Proceedings?
After consulting with your attorney, here are five reasons why you should deactivate or delete your Facebook account while your divorce case is pending:
- YOUR FACEBOOK HISTORY IS SUBJECT TO THE DISCOVERY PROCESS
During the discovery process, it is common for a domestic attorney to request that the opposing party produce a complete copy of their Facebook history. What is the opposing counsel looking for? Images or messages that reflect that you are an unfit parent, that you cheated (or are cheating) on your spouse, that you made disparaging comments about your spouse, or even that you confessed your own marital or parenting faults and failures – all of which could be damaging to your domestic case.
Facebook is aware of the potential goldmine of evidence that it holds and even provides the following direction on its Help Center:
Federal law does not allow private parties to obtain account contents (ex: messages, Timeline posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et seq.
Parties to litigation may satisfy party and non-party discovery requirements relating to their Facebook accounts by producing and authenticating the contents of their accounts and by using Facebook’s "Download Your Information" tool, which is accessible through the Settings drop down menu.
If a person cannot access their content, Facebook may, to the extent possible, attempt to restore access to deactivated accounts to allow the person to collect and produce their content, however Facebook cannot restore account content deleted by that person. Facebook preserves account content only in response to a valid law enforcement request.
Even after you comply with your spouse’s attorney’s discovery request and you produce your Facebook history, keep in mind that you have an ongoing obligation to continue to provide supplemental discovery until the date of your trial. Just because you produced your Facebook history early on in your case does not give you the all-clear to post without consequences from that point forward.
- “BIG BROTHER” (A/K/A YOUR SPOUSE) IS ALWAYS WATCHING
Domestic attorneys ask their clients to provide them with evidence of any allegations that they want to make against their spouse. For instance, if you allege that your spouse is cheating on you, how can you prove this? If you believe that your spouse is unfit to care for your minor children, how can you prove this? If your spouse is an avid Facebook user, then your spouse’s Facebook page will probably be the first place you, your attorney, your private investigator, and even your spouse’s attorney will look for evidence or leads. (In fact, more often than not, one of your spouse’s Facebook posting(s) may have been one of your reasons for divorce.) Keep in mind that this search for evidence may occur on a frequent basis while your case is pending.
A picture on Facebook may truly be worth a thousand words because a picture posted on Facebook may contain more than just a damaging picture – it may contain a comment from a paramour or a comment or picture of a friend that joined your spouse for a night out on the town or on a vacation getaway where the alleged adulterous acts took place, providing your attorney with the name and possible contact information of a potentially key witness.
- THE DANGER OF THE “OVERSHARE” : YOU MAY NOT BE ABLE TO RESIST POSTING CONTENT THAT IS DETRIMENTAL TO YOUR CASE
You know yourself best, but in a moment of weakness you may not be able to control the urge to post content on your Facebook page that could be damaging or detrimental to your case. Or, with all of the stress that accompanies a divorce, you may end up unintentionally posting detrimental content. This detrimental “oversharing” is so easy to do, as all it takes is just a few keystrokes and a click and your dirty laundry is aired out on Facebook for all to see, including your spouse (and/or your spouse’s attorney) who is dutifully reviewing your Facebook page on a daily basis and collecting evidence in order to prove his case.
By way of example, you filed for divorce against your spouse because he committed adultery, but you decide that if he’s being unfaithful then you will as well. In a moment of weakness, and in order to show your spouse that two can play at that game, you decide to post a scandalous picture of yourself on Facebook. This photo may very well end up as ammunition for your spouse’s attorney to question your fitness as a parent and your faithfulness to your spouse, thereby putting your case at risk.
Or, during your deposition you may be asked by your spouse’s attorney if you have ever said or written anything disparaging about your spouse. You may say no, having completely forgotten what you posted on Facebook the other day in a moment of weakness, and your spouse’s attorney (who has been given daily updates of your Facebook postings) has fuel to attack your credibility at trial, or worse.
- YOU CANNOT CONTROL THE PICTURES/COMMENTS YOUR FACEBOOK “FRIENDS” POST ON YOUR PAGE
While you may know yourself best, you may not know your Facebook “friends” and their posting tendencies at all! You may be doing a good job of keeping your paramour under wraps, and controlling the urge to air your dirty laundry, but beware – you cannot control the ability of your Facebook “friends” to post on your page.
Here’s the scenario: you privately disclose to several of your Facebook “friends” who you thought you could confide in and who you thought were on your side during your divorce, that you are having an affair. However, you didn’t realize that one of your “friends” was always jealous of you and jealous what she perceived as your perfect marriage. A day or two later, your “friend” posts a snide comment on your page about adultery or flat out repeats your secret – potentially damaging your case. The various ways that this type of scenario can play out are simply out of your control and can be detrimental to your case.
- AVOID TEMPTATION. IT STARTS WITH A FRIEND REQUEST…
Adultery is one of the most common grounds for divorce. If you are in the midst of a divorce, and the grounds for the divorce is adultery, then it is more likely than not that a Facebook Friend Request to you or your spouse may have sparked the demise of your marriage. Facebook makes it so easy to reconnect with a high school, college sweetheart, an old fling, or connect with an acquaintance that perhaps you wouldn’t normally speak to on a regular basis or face-to-face. And what may start out as innocent Facebook flirting can rapidly turn into much more.
So, taking heed to Reason Number (1) (the fact that your Facebook history could be subject to the discovery process) and, more importantly, moral principles, don’t allow yourself to even be tempted to start a new relationship—particularly not the Facebook relationship status update kind—during the midst of your divorce.
So, how do you protect yourself? Facebook provides you with the capabilities to deactivate your account or even delete your account. But again, always consult an attorney before deleting your social media accounts! Doing so improperly can result in being accused of spoliating evidence. If you decide to deactivate your account, you have the ability to temporarily leave your account and then return to it when your case has concluded. If your account is deactivated then your profile immediately disappears from Facebook, if your name is searched your Facebook page will not appear and your profile information will be saved in case you want to return to Facebook at a later date. If you decide to permanently delete your account then your account will be shut down and you will not be able to regain access. Furthermore, most of your personally identifiable information associated with your account will be removed from the Facebook database, such as your e-mail address and mailing address. However, Facebook reassures its users that need the utmost protection that if you permanently delete your account “[c]opies of some material (ex: photos, notes) may remain in our servers for technical reasons, but this material is disassociated from any personal identifiers and completely inaccessible to other people using Facebook.”
After speaking with your attorney, if you decide not to deactivate or delete your Facebook account, then, at a minimum, unfriend your spouse and your spouse’s friends and change your privacy settings so that you can, at a minimum, protect what is visible to the public on your page. You are still subject to the possibility of the information being obtained through the discovery process, but the information is not readily accessible to the public.