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Here’s a non-surprise – most unhappy couples look to their partner’s social media accounts for evidence of wrongdoing. There have even been studies showing Facebook had a hand in up to two-thirds of American divorces! If there were an intersection where drivers had a two out of three chance of crashing, all would detour around it. Today, many family law practitioners agree that social media can become a huge wedge that breaks couples apart. Let’s examine how this can happen and why it may be wise to avoid social media during times of spousal contention.

It’s Simple Math

Many will agree that there is no better brainless way to spend an hour (or three, or seven) after a hectic day than browsing Instagram or watching TikTok. But what is commonly overlooked is the question of time – every hour spent staring at a phone is one less hour you can spend building relationships with your spouse, family, and friends. Worse, it can’t be said that, whoops, I don’t know where the time went. A choice was made, and choices reflect personal priorities. If you don’t value your marriage, then why should your partner?

But assume the relationship has deteriorated sufficiently for both sides to be considering divorce. How should social media be handled to avoid issues later? Here are a few thoughts to consider:

  • Don’t delete your accounts – this makes people look extremely guilty of something. Besides, the internet never forgets, and there is always a way for online content to be reconstructed. In court, this could also be viewed as “spoilation” of evidence. And, in Texas, it is a criminal act to delete social media, email, or text accounts in anticipation of litigation.
  • Do change your passwords (this is a sound periodic practice even in the best of times). Be sure your privacy settings are set to the highest levels, and be very leery of getting tagged in photos by others. In a court of law, you can be depicted by the company you keep.
  • Never, ever discuss your spouse or your case, and do not under any circumstances vent online. Everything posted is in the public domain and could be used in court. And since attorneys and judges are human, do not give them any reason to portray you as cruel, vindictive, or worse, by disparaging them.
  • Search the internet about yourself using the major search engines. Find out what “it” knows and what information is currently associated with you. While eliminating undesirable references is probably impossible, at least you can brief your lawyer so he/she is not blindsided later.
  • Be extremely cautious in posting photos or videos. These establish an unassailable record of your whereabouts, habits, and friends. You can’t claim poverty if you’re seen on the balcony of an expensive hotel suite in Bermuda. You can’t claim you’ve never met a particular person if they are sitting in your lap. And there is also the unknown – Alex Murdaugh never imagined that a video containing his voice would probably determine his fate.
  • Last but certainly not least, do not seek revenge. This includes posting intimate photos, now commonly referred to as “revenge porn.” This is generally illegal and can lead to job loss, significant fines, and sometimes jail time. Also (even though this should be obvious), do not post intimate (or even friendly) images of yourself. Proof of adultery can negate the possibility of support, negatively impact the distribution of assets, and turn people (and your kids) against you.

Is It Worth the Risk?

While it is possible to continue posting to social media, you can see there are numerous minefields that must be avoided. You can ask yourself if a specific post would be embarrassing (or worse) if produced in court, but sometimes even the most innocuous photo might undermine your position. There is an increasing consensus in the legal community (based on our experience) that social media should be avoided once a relationship turns sour. In fact, we advise our clients to completely avoid social media while the case is pending. If you have questions about using social media or any other family law matters, please feel free to schedule an in-person or online appointment.