Social Media Does and Dont's
The very first thing that a party to a divorce should do is change his or her passwords for everything! This includes logins, cellphone codes, emails, social media accounts, Amazon, etc. Don’t change it from ILoveShopping1 to ILoveShopping2—get creative. It may even behoove you to create an entirely new email account that is not given to anyone except your lawyer. You can typically do this for free, and it will help provide you a safe space for communication.
Now, just because you are engaged in a family law matter does not mean that you need to entirely cease social media usage or go totally incognito. But think before you post. If you would be embarrassed for your mother (or your judge) to view the post, don’t post it. Change your account privacy settings to the highest level possible. For example, you can customize your Facebook profile so that only certain friends can see your posts, your personal approval is required before anyone can “tag” you in a post or photo, and only limited access is given to your past posts. Similarly, Instagram allows you to make your account entirely private, requiring your approval before someone can see your photos. Changing your social media settings is a simple process, and most of these sites provide easy, step-by-step directions.
An old adage goes: “You can only control what you can control.” This holds especially true in the digital age, as you cannot always monitor what is posted by others. So, before you take that picture with your “newly single friends”—at the local bar … with the band with the cute lead singer … on a Wednesday night when you are supposed to be at home with your children—remember that it could “go viral” among people who know you, even if you aren’t tagged in it. Although you could de-tag yourself, it could be too late by the time you discover it and, generally, what goes on the Internet stays on the Internet. And even if you aren’t tagged, you are still in the photo. If your friend made the photo “public,” then you are out there for everyone to see. Discuss with your friends “no-post discretion” when taking photos.
Although rules vary by state, there is a general principal that reigns supreme: do not delete past posts or photographs! At least, do not do this before consulting your lawyer, as many states make this a punishable offense. This kind of deletion can be considered “spoliation,” more commonly known on CSI: Miami as destroying or tampering with evidence. Even if it is scrubbed from your personal profile, the actual social media providers have back-ups, and other websites may have already “crawled” your page, placing your content on countless other webpages. Thus, it will be found. Further, if you are responding to social media discovery requests, those very posts could be considered relevant, and your deletion may be a violation of discovery rules.
As you traverse through your proceeding, there will no doubt be a flow of new individuals who enter your life. This is not the time or place to finally have that one- thousandth follower. Do not send friend requests to or follow the opposing counsel, potential witnesses, or judges. Your lawyer should be very careful with this, as he or she should not be friends with the opposing party, either. If you do receive a request for a follow from one of these individuals, tell your lawyer! There are many rules that exist that may require disqualification, sanctions, or more.
Social media has created an outlet for individuals to share their interests, thoughts, hopes, frustrations, desires, and political beliefs. For many, this is therapy; it allows them to connect with thousands of like-minded or un-like-minded individuals with the click of a button. During the difficult process of divorce, one may want to use this as an outlet of sorts. Be careful. Do not discuss the case online. What may seem like an innocent post to you could be interpreted in many different ways, creating a potential headache on top of your existing heartache. Further, it could result in a breach of attorney-client privilege. Simply put, this is a personal matter that should not be shared with that guy you haven’t seen since high school but who is always asking for Candy Crush help.
Many times, a divorcing party is already “involved” with another person. Even if this is a “secret,” it likely will not stay that way for long. This new paramour will quickly be identified as a person of interest in the case. As such, what he or she posts on social media will be under a microscope, too, and potentially, attributed to their counterpart (you). Remember that there is no privilege between an adulterer and his accomplice, so any pillow talk about what you discussed with your lawyer is now discoverable, and, if your new love interest isn’t already made a witness, he or she may be required to be one. The same rules apply for parents, siblings, best friends, barbers, personal trainers, and the like.
Electronic Dos and Dont's
Once a divorce case has been filed (or becomes imminent), you may no longer have the access that you once had to certain information—especially if the opposing party took the first step discussed in this article (the changing of passwords) to the next (and wrong) level of locking you out of financial accounts. As such, at the top of your priority to-do list should be the back-up of all relevant information you have access to (obviously, this does not mean you should violate someone’s privacy). Find a safe storage space, such as an external hard drive or private Dropbox account, and download emails, photographs, text messages, business records, account statements, insurance policies, important documents, and the like. If a list or index is maintained identifying these important documents, it will make their use in the discovery process that much easier. Use password protection on your storage mechanism to ensure the utmost security—but make sure you don’t forget your password! Maintain this backup in a safe location because it may be your last and only shot at unfettered access to this critical information. Just as with prior social media postings, do not delete or alter documents that are electronically maintained. This, too, could be deemed spoliation of evidence.