If you want to be on social media these days, there are many platforms available – Facebook, Instagram, Twitter, Snapchat, Tik Tok, LinkedIn, YouTube – the list goes on. Social media helps people share content, communicate, and just catch up on news or an occurrence in someone’s life. However, social media can also be used against you in a legal setting if you are not careful about what and who you are sharing with. Social media content can absolutely be used as evidence in court, especially in your divorce or parentage case.
While social media posts might not be a direct cause of the divorce, they can certainly make issues worse between spouses who are going through the divorce process and can result in more litigation. If your accounts are all able to be viewed by the general public and not protected in any way, it makes it very easy for your spouse, his or her attorney, or some other third party to search the account posts and pictures.
Using Social Media Posts As Evidence
Social media posts, videos, messages, and pictures can be used in a variety of ways in your divorce or parentage case. For example, certain posts could be used to show that a parent is neglectful of their duties as a parent if they post about leaving the children at home without a babysitter so that parent can go to a party or go out to a bar at the last minute. Other posts or pictures showing a new car purchase, or the purchase of an expensive new purse could provide the other party with information about your financial situation that you otherwise would not have revealed, which could lead to misrepresentations about your income for purposes of calculating child support or spousal support. Posts of new boyfriends or love interests could lead the other spouse to believe you may be having help from this person paying your expenses, or even that you might be spending marital assets on this person like buying dinner for them, vacations, or gifts. This could result in a claim of dissipation being filed against you in a divorce case. There are just a few examples, but there are many ways social media can be used against you in your case.
If a spouse or parent finds a post, message, or picture they believe will be useful in their case with the other parent or spouse’s social media, the next step for them is to bring that post or picture to their attorney to help determine if what they found is relevant. Relevancy is determined by the Illinois Rules of evidence. Evidence that is relevant is evidence that makes any “…fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A court might not allow certain social media evidence to be used in a case if it is not being introduced to prove a specific issue allowed by statute.
Your attorney can review what you have found and determine whether or not it is relevant to any facts or part of your case. In some situations, even though you think what you found might be relevant, it might not be relevant in the eyes of the court.
If your attorney can confirm that the evidence you found on social media is relevant to your case, the next step is to authentic the photo, message, or social media post. This means you need to prove the evidence you found is indeed what you are alleging that it is. The best way to accomplish this is to provide testimony to the Court from the person who created the post. The testimony would include that person admitting they made the post or sent the message, and detail the date, time, circumstances of where a photo was taken, and who is in the photo. There is a chance that the person who created the post, will deny that they did so. In this case, your attorney will have to ask additional questions of the person who created the post to try to prove that the post or message in question is consistent with their other social media posts or messages. Just because you think you found something on social media that proves a point, does not mean it can and will be used in your case. Be sure to talk to your attorney about any social media evidence you find first.
Disable Social Media Accounts
Also, remember that social media is not private unless you take certain actions to restrict your account to strangers or adjust your privacy settings. While you are involved in an ongoing divorce or family law case, the safest option is usually to disable your social media accounts during the court proceedings, or not to post anything at all until your family law case has been resolved. Always think before you post!