Can Social Media Be Used as Evidence in Divorce Court?

 Posted on June 26, 2023 in Divorce

We live in a digitally-connected world, and due to the use of smartphones, many people are constantly interacting with others online. Social media is an integral part of many people's daily lives. It allows them to communicate with friends and family members, connect with others who share the same interests, post updates about their lives, promote businesses, and pursue employment opportunities. While the ability to connect and communicate with others can be beneficial for many people, the constant sharing of personal information on social media may also have its downsides. For those who are going through a divorce, it is important to understand when social media posts or other information shared online could potentially be used as evidence in their case.

If you are planning to end your marriage, or if you have already begun the divorce process, it is important to have an attorney on your side who can help you understand the legal issues that may play a role in your case. The lawyers at Weiss-Kunz & Oliver, LLC are well-versed in matters related to digital technology and divorce, and we can provide guidance on how social media may affect your case. Whether you believe that information your spouse has posted online may need to be addressed or are concerned about how your posts could possibly be used against you, we can advise you on the right approach to take as you work to resolve divorce-related issues.

Types of Social Media Evidence That May Play a Role in a Divorce

There are numerous social networks and websites that allow people to share photos or videos, provide updates, and send messages to others. Some of the most popular sites and apps include Facebook, Twitter, Instagram, TikTok, Snapchat, and Reddit, although new social networks are appearing on a regular basis. Multiple types of information shared on these apps may end up being used as evidence in a divorce, including both public posts and private messages. These forms of evidence may include:

• Status updates - A person's social media posts could be addressed during the divorce process, particularly if the information shared is public and accessible to anyone. These posts may be used to address the activities a person has engaged in, the locations they have visited, or their relationships with others.

• Photos and videos - Many of the most popular types of social media posts involve sharing details of a person's life. The images and videos a person posts may be used to demonstrate their activities and locations, including actions that may indicate that they have engaged in illegal activities or other behaviors that could have a negative impact on their spouse or children.

• Location data - Many social media platforms track a person's location, and this can provide insight into a spouse's whereabouts. This may become an issue if a spouse is accused of taking illegal or inappropriate actions while a couple was married or during the divorce process.

• Direct messages - When using social media, people may send private messages to others. Conversations between spouses may be used as evidence during a divorce, and in some cases, one spouse may be able to access messages that the other spouse had sent to third parties. Messages that involve discussions of divorce-related issues or conversations that are related to a spouse's activities could be relevant to a couple's case.

• Deleted messages or photos - Even if a spouse has deleted social media posts or messages that were sent to others, it may be possible to recover this information through digital forensics. This may allow for messages, photos, or videos that are relevant to a case to be considered by the court.

• Dating apps - A spouse's profile or messages sent to others on an app or website such as Tinder, Match.com, OkCupid, Bumble, or Grindr may be relevant if they were engaging in actions that could affect a divorce.

Situations Where Social Media Evidence May Be Relevant in a Divorce

Not everything spouses post to social media will affect the divorce process. Some messages or posts may simply consist of updates about a person's daily life or casual conversations with others about their interests. However, social media activity may be relevant if it involves issues such as:

• Infidelity - An extramarital affair may be one of the primary reasons for a divorce, and information a person shares on social media may be used to show that they have committed adultery. While a spouse's use of social media may show that they had an affair, this will not necessarily be a factor in a divorce. Since Illinois only allows for no-fault divorce, a person will not be required to show that their spouse took any actions that led to the breakdown of the relationship, and it will not be necessary to prove that a spouse engaged in infidelity when filing for divorce. However, if a spouse's actions while committing adultery affected a family's finances, or if there are other reasons why infidelity may affect the decisions made during divorce, social media activity related to the extramarital relationship may be relevant.

• Misuse of marital property - Social media evidence may be used to show that a spouse has engaged in the dissipation of marital assets. Dissipation involves the use of funds or other marital property for the sole benefit of one spouse after a marriage has begun to break down irretrievably. This can be a significant issue to address during the property division process, and information shared on social media may show that dissipation has occurred. For example, if a person posted photos on social media of an expensive new watch, or if they shared information indicating that they stayed in a hotel while having an affair, their posts may be used to show that they used marital assets improperly.

• Income and financial resources - During the discovery phase of a divorce, spouses are required to fully disclose information about their finances, including the income they earn and the assets they own. In some cases, social media evidence may be used to demonstrate that a spouse has attempted to hide marital assets or lied about the financial resources they have available. For example, a person may misreport their income in an attempt to avoid paying spousal support, but if they update their LinkedIn profile to show that they have received a promotion at work, this could be used to show that they earn sufficient income to provide support for their former partner.

• Child issues - Parents will need to determine how child custody and parenting time will be handled during and after their divorce, and there are a variety of factors that may affect these decisions. In some cases, information shared on social media may be used to argue that a parent is incapable of providing the proper care or that children could potentially be at risk of harm due to their actions. For example, photos of a parent engaging in inappropriate behavior, such as heavy drinking or drug use, could be used to argue that the parent is unfit to care for children.

• Disparaging comments and other inappropriate posts - Social media often provides an outlet to complain about problems in a person's life or vent about frustrations. During the divorce process, a person may complain about their spouse's actions or discuss details of their case on social media. This could be seen as an indication that a person is unwilling to cooperate and negotiate a divorce settlement in good faith. In some cases, messages could even be used to call a person's mental health into question. Social media posts that share inappropriate details about a couple's children may also need to be addressed during the divorce process, and a person may raise concerns that their spouse is attempting to use social media to commit parental alienation or unfairly influence decisions about divorce-related issues.

• Privacy - While many people have become accustomed to sharing details of their lives online, they may be restricted from posting certain types of information during the divorce process. Spouses will often want to keep the details of their divorce private, and one spouse may become concerned about how the information shared by the other spouse could affect their relationships with friends, family members, employers, or others in their community. If one spouse becomes concerned that inappropriate details are being shared, they may raise this issue in court and ask for restrictions to be put in place that dictate how social media can be used while their case is ongoing. Ultimately, any messages or posts that could lead to conflict between spouses may affect the divorce process. These issues could prolong a divorce, or they may cause complications that make a case more difficult to resolve.

How Should Social Media Be Used by Divorcing Spouses?

In many cases, it is recommended that divorcing spouses avoid the use of social media altogether until their case has been finalized. What may seem to be harmless status updates could end up revealing details about a person's life, relationships, and activities. Some messages could lead to increased levels of conflict, while others could affect the outcome of decisions about property division, child custody, or other issues.

However, it may not be possible to completely give up social media. A person may rely on these apps to maintain communication with family members, or they may need to use social networks to promote their business. To ensure that social media will be used correctly, it is important to avoid sharing any details about the divorce, and publicly-shared information about the lives of spouses or their children should be kept to a minimum.

It is also important to remember that anything a person posts online could potentially be viewed by their spouse and their spouse's attorney. Even if private messages are sent to friends or family members, these messages may be passed on to the other spouse. Messages or posts may be deleted, but they could still be recovered, or a person could face penalties for attempting to hide information that may be relevant to the divorce. Before sharing any photos, videos, status updates, or messages, a person should consider whether they would want this information to be raised in court.

Contact Our Elmhurst Divorce Lawyers for Social Media Evidence

Social media is becoming an increasingly significant issue in many divorce cases. Because of this, it is essential to be mindful of the content you post on social media platforms, and you may also need to address information that your spouse has shared and determine whether it may be relevant to your divorce. At Weiss-Kunz & Oliver, LLC, our DuPage County divorce attorneys can provide guidance on what types of social media evidence may be used in your case, and we can ensure that your rights and interests will be protected as you work to resolve any disputes that you may encounter. To get the legal help you need as you address divorce-related issues, contact us at 312-605-4041 and schedule a consultation.

Sources:

https://www.psychologytoday.com/us/blog/better-divorce/202111/marriage-divorce-and-social-media-recipe-disaster

https://www.isba.org/ibj/2014/06/buildingyourcasewithsocialmediaevid