Don’t delete that post – everything is evidence

With the rise in the popularity of social media come the inevitable issues that stem from its common use as a form of communication. Divorce is not exempt from the influence of Facebook, Twitter or Instagram whether used to vent about a relationship or document opinions about the process itself.

However, once a divorce proceeding begins, you don’t get to edit the past. Facebook posts, emails, tweets, Instagram posts – all of these are forms of discoverable evidence. And if you do try to delete past posts or communication, you may find yourself up against a host of negative repercussions.

What is “discovery”?

Discovery is the process through which lawyers request information from the other party or parties involved in the lawsuit. In divorce it usually involves requests for documents such as tax returns, bank statements, financial statements, monthly budgets, business or home valuations. It may include requests to answer questions (interrogatories) or to admit or deny certain statements or information (admissions).

When you begin a divorce process, both parties are on notice that a legal proceeding is underway and the destruction of any information that may be relevant to that proceeding is to be preserved. Whether or not information is relevant is really up to the lawyers or the judge to decide and not the parties themselves.

Examples of relevant social media posts

So how is social media even relevant? Whatever the issues there may be in a divorce, there are about as many ways that social media can be relevant. Here are some examples of potential issues in a divorce (or custody dispute) and potentially relevant social media that would call certain positions into question:

• An issue regarding the income level of a party, but then that person posts on Facebook about going on extravagant vacations or buying a brand new car.
• Some parents want to demonstrate their ability to effectively co-parent but then tweet a very negative, angry or profane statement about the other party.
• One parent may want to argue that the other parent is unfit but then their own past posts are found that extol the virtues of the other so-called “unfit” parent.

Getting rid of your social media past when you have notice of the proceeding looks bad and it has real consequences. If you are found to have discarded potentially relevant information in a legal proceeding, you could be facing sanctions from the court and at the very least your credibility will take a huge hit which can impact your case.

Do yourself a favor and speak with an attorney before you take any action that may have a negative impact on your case. With experienced counsel, you can avoid some of these social media and discovery pitfalls.