When I wrote the original text of this post in the early 2010s this was a novel question with social media still a relatively small part of our society. Myspace had all but disappeared, Facebook dominated social media while Twitter, Pintrest and Instagram were just starting to emerge. LinkedIn was around but nobody really knew what to do with it. Tiktok? Didn’t even exist. Although social media occupied a smaller part of our world nearly a decade ago it was already established as one of the prime methods to share thoughts and photos with friends and family. Facebook’s identity transparency made the internet seem less sketchy but also made it easier to find people.
Today social media lost its novel feel that every thought deserved a post people have always shared and posted without much consideration of the consequences. In a divorce, child custody case, or other family law case, your social media can absolutely play a role as evidence. Before doing anything with your social media accounts you should talk to your divorce attorney about what you can and cannot do with your accounts–but here are some things to consider.
Are social media posts and accounts admissible in a Texas divorce?
Generally yes, social media account content is admissible as evidence in a divorce. As we will discuss below, social media content can include substantial information that may be relevant to issues in your case. Most people post from their own accounts and most social media companies go to great lengths to secure their sites and apps. As a result, it is likely that any post from an account you control was content you created or shared. If you created it, then you may have to account for it as evidence of your thoughts or events in which you participated.
Can I delete my social media account or posts during a divorce?
An understandable and early thought many people have in a divorce is to delete posts or accounts on social media. After all, social media is an open book to years of history of thoughts and images by the author. A divorce attorney on the other side certainly will consider that a valuable resource for evidence. Can you delete individual posts or your entire account? No.
In both Texas state court rules and federal rules–and this is true everywhere–parties generally cannot delete, alter, or destroy relevant information to prevent its discovery by another party. This is called spoliation. Parties in a lawsuit, even a family law case like a divorce, are entitled to investigate and obtain evidence related to the case. If you delete or destroy the evidence, then the other parties can ask the court for sanctions. Those sanctions can be severe.
Sanctions for spoliation in a Texas divorce
In a Texas divorce or other family law case the other party’s attorney can ask the court for sanctions that include the right to have the deleted account or posts treated as harmful evidence–even if it wasn’t. If the account or posts deleted cannot be recovered then the judge can rule that the deletion is proof the evidence was harmful to you and the other side can admit the deletion for that purpose. That can be very harmful to your case.
Even if you deleted your accounts as a precaution the judge can still rule on spoliation to your detriment which might be far worse than whatever was on your account.
Even if the other party’s attorney recovers the data the judge may consider or rule that a jury can consider your attempt to delete it as proof that the evidence in your account is harmful to your side.
If I decide to delete my social media account or posts in a divorce are they really gone?
Generally social media companies allow you to delete individual posts or your entire account but the data remains on their servers. Sometimes they keep the data live but invisible to the public for a period of time in case you want to revive it. Even if the account or posts are too old to recover the data may remain on their servers. Snapchat, which advertised the benefit of short lived posts, turned out to maintain supposedly deleted posts.
Social media companies use your account information to sell for marketing and the profiles created by your previous account or posts may remain. It may require a subpoena or court order to obtain this data but do not count on it being gone forever.
By the early 2010s social media companies were already exhausted by receiving subpoenas for account information so they made it easier to obtain the entire account by download or request so they did not have to respond to subpoenas in every lawsuit in the country. Even these easily downloaded copies of your social media accounts have shocking amounts of preserved data. In addition to photos and posts they can include:
- Comments made on other user accounts;
- Posts and comments in private groups;
- DM and messenger exchanges with other users;
- Shares and likes of other user content;
- Metadata including login dates, times, locations and devices;
- Search history;
- Friend requests;
- Profile history;
- Advertising profiles built from your account info and history.
Even if you delete your entire account the data likely remains part of the company’s data. If push comes to shove a subpoena or court order may allow another party to your divorce to harvest all of this information.
How can my spouse use my social media account against me in a divorce?
Social media accounts are treasure troves of evidence in a lawsuit. Not only do many people post frequently across their accounts creating a large volume of evidence but it is in text, photo and video format directly from you. It is sometimes the very best evidence in a divorce or child custody case.
A divorce attorney may need to spend a moderate amount of time to review an account looking for the best evidence but electronic data is increasingly easier to search and organize. We are likely not far from AI extracting useful data from the accounts for attorneys to use in divorces.
Social media content can have a wide range of usefulness as evidence in a divorce. In family law proceedings it is rarely the case that one piece of evidence wins the trial; however, the stream of content in a social media account can show a pattern or history of improper behavior. Sometimes the evidence is as obvious as photos showing something damaging to your side. Other times it involves putting together small details across photos, videos, posts and comments.
Some of the ways social media accounts can become evidence in a divorce include:
- Proof of an extramarital affair in photos, friends, comments, likes;
- Proof of illicit drug use around the children;
- Evidence of your locations;
- Proof that things you said in a deposition, affidavit, or testimony was untrue;
- Proof of child neglect;
- Evidence of spending marital assets inappropriately;
- Locating hidden assets;
- Proof of your income;
- Examples of you disparaging your spouse to your kids or in front of other family members;
- Proof that your family members are unhealthy influences on your children;
- Proof of gambling or addiction;
- Examples of hostility or violence that support allegations of spousal abuse.
In a no-fault divorce many of these issues may not be especially important; however, if you have children there may be more of a battle over custody and child support issues where this evidence becomes valuable.
What should I do with my social media accounts in a divorce?
First and foremost you should rely upon your divorce attorney to advise you specifically about your case. Generally your divorce attorney will want to limit the potentially harmful consequences of your social media accounts and posts. The best way to protect yourself is to limit access to as much as possible. While you cannot delete you do not have a duty to open your accounts to the public or continue to post.
Change log-in credentials
Chances are your spouse knows your email account and password for some of your social media accounts. Your spouse might even have access to a device that saved all of your passwords. With that access your spouse can not only see your account but can also see private or direct messages, deleted or draft content, and even create posts or messages.
If you or your spouse filed for divorce you should create a new email account, attach that email account to your social media and financial accounts, and change the passwords on everything. This will prevent your spouse from accessing your accounts internally or worse, creating harmful evidence. You should also use this new account to communicate with your divorce attorney.
Deactivate accounts vs. blocking
Often in a divorce people will block their spouses and the spouse’s family from their social media accounts and think that is enough. That isn’t. You likely have friends, especially couple friends, who will pick sides in the divorce and not all of them on your side. Anybody who isn’t blocked that remains friends with your spouse may let your spouse see your account. Your spouse may create new accounts to become social media friends with your actual friends. If you allow “friends of friends” to see your content then your spouse or their family members might regain access to your account.
The best protection is to simply deactivate your account until the divorce is over. This is different from deleting your account. Deactivating the account makes it private to everybody so only you can see it. When the divorce ends you can reactivate the account and continue using it if you like.
Increase privacy restrictions
You may have reasons why you cannot or should not deactivate social media accounts. If you must keep accounts active, consider restricting as much as you can be increasing privacy restrictions. You can relax privacy settings after the divorce but this can keep accounts active while minimizing access to anything that does not absolutely need to be accessible by the public or your followers. For example, do people really need to see your friends or followers lists?
Stop or limit posts
If you must keep your social media accounts active during your divorce, then consider stopping or limiting your posts. Any new posts during the divorce can become evidence of your activity. The more you post the more risk you create harmful evidence. If you must post avoid posting about the divorce, your spouse, any new significant other, anything negative about your children, or generally anything that might cast you in a negative light.
After the divorce
Once your divorce is completely over it may be safe to relax privacy settings and restore your accounts. If you have children with your former spouse then you should talk to your divorce attorney about whether you need to continue restricting your account. No matter what your attorney says about past content your attorney will likely have advice for your future posts if you have kids.
Posting negatively about your former spouse after the divorce can create problems with the co-parenting relationship and ultimately lead to more litigation around the custody orders. Your divorce decree will likely have non-disparagement orders prohibiting you from trashing your former spouse.
You should also be careful about what you post in general. Anything that casts you as a potentially bad parent might become evidence in a future enforcement or modification proceeding. Once you learn to live with more privacy in your social media accounts you may not feel a need to go backwards.
Talk to your Texas divorce attorney about how social media may affect your case
With the volume of content on the average social media account there is potentially a lot of risk to your divorce from your accounts. An experienced divorce attorney can discuss appropriate limitations on your accounts and how to deal with problematic content already posted. Although you cannot delete your account or posts, your divorce attorney needs to know about the potentially harmful evidence in your case to prepare to counter or minimize that evidence. Letting your spouse surprise you and your attorney at trial may have serious consequences in the property division or custody decisions in your case.