Divorce in the digital age - avoiding the pitfalls of social media

Social media undeniably plays a huge part in our lives today.  At the last count, I had six apps on my phone, four of which I use regularly to stay “connected” and all of which contribute to my digital footprint.  Social media is a normal (some may say obsessive) part of most people’s modern day life. 

Given that, it is hardly surprising that issues relating to social media arise in family cases.   An increasing number of divorce petitions based on one party’s unreasonable behaviour now refer to social media, and the impact of social media doesn’t stop there.  For many, social media offers a way to help them cope with marital breakdown through posts of support by online friends and followers.  However it is used, it can prove to be a useful source of evidence in many cases and those using online profiles should be wary of the potential pitfalls.

Evidence and the traps of social media

Both parties in divorce and dissolution proceedings have a duty of full and frank disclosure.  An online profile personality could, however, tell a different story to the one being told to the court, e.g.

• Evidence of splurges could undermine an argument about needs and available financial resources;
• Photographs of holidays with your new partner could be used as evidence of cohabitation (and financial resources);
• Online profiles could provide proof of employment and/or salary expectations in a case where that individual is looking to persuade the court that their earning capacity is far lower than it is;
• Beyond the finances, photographs or statuses could be used as evidence to demonstrate how children are being cared for.

Even if posts on social media are deleted soon after being posted, the damage could already be done. Taking a screenshot takes seconds and you can’t be sure who will have seen the post before it’s deleted.   You may have blocked your ex-partner from viewing your online profiles, but you can never be sure who of your mutual friends and family members may be reporting back to him/her.

Social media doesn’t just present a myriad of evidential problems and opportunities.  Posts about one party’s new life could also derail negotiations and extend the process.  An ex, hurt at the public announcement of a new partner, may unknowingly channel that hurt into obstructing settlement discussions.  Keeping your online presence friendly and uncontroversial in the eyes of your ex will only help.

Keeping it private 

The privacy risks surrounding social media are well known.  The recent spate of media reporting on celebrity injunctions has yet again placed the spotlight on the difficulties of maintaining privacy in the digital world.  Johnny Depp and Amber Heard’s divorce is being played out very publicly for everyone to judge.  While not all of us prompt such public interest, the principle is still the same.

As the saying goes, don’t air your dirty laundry in public.  Keeping your private life off social media will help keep your private matters private.  Of course it is possible that a court could conduct proceedings in public, so you may think what’s the point?  If you are really concerned, it is possible to conduct your divorce in private.   Arbitration and private financial dispute resolution hearings are becoming increasingly popular.  They do guarantee privacy and avoid the risk of lengthy court delays.  

Online defamatory comments about an ex could have consequences that reach further than divorce proceedings.  Aside from that, parties to proceedings are subject to an implied undertaking not to disclose details about those proceedings. A seemingly innocent post updating your online friends about your divorce or children proceedings could compromise your case and land you in hot water.

The impact on children

Regardless of their age, it is never ideal for children to get caught up in litigation between their parents.  Sometimes it is unavoidable, but their exposure can be limited with a pledge not to post anything online.  Even young children can be a dab hand at using social media applications, and witnessing their parents play out a dispute for the world to see could risk long term damage to parent-child relationships and, potentially, leave the child feeling conflicted and required to pick a side.

Now for the good news…

Social media isn’t all bad.  Not every family law related problem will descend into online snooping and emotive posts and there are apps and services coming on to the market which are designed to help families going through relationship breakdowns.  In a recent blog, my colleague Hannah Muress referred to an online service called ParentPlan, which is intended to help parents exchange positive information about the children.  Social media can be used to similar effect.  Sharing albums, calendars, pin boards of children’s progress with your ex-partner and wider family members can help with the important task of positive co-parenting after separation.  When used for the good, social media can provide a powerful tool for families to stay connected after the dust of divorce has settled.

Navigating the social media minefield

If you are going through a divorce or separation, think carefully about how social media can work both for and against you.  Whilst in no way exhaustive (and certainly not applicable to every case), below are some tips to help you navigate the social media minefield:

• Think of the children - it won’t be pleasant for the children if mum and dad have had a public battle for friends and family to see, both now or when they are older perhaps.
• Check your security settings - make sure your profile is private and be wary of automatic changes to the settings of the apps that you use.  Recheck your settings when you receive notifications of updates and keep your private profile private.
• Don’t post in anger or after you’ve had a drink - try the old fashioned approach of sharing your thoughts over a drink with a friend.  An angry comment made amongst friends can be forgotten, rather than being caught online forever.  Better still, if you feel you need help, seek it out from a professional.  Your solicitor will be able to recommend a suitable person to help you work through the inevitable emotions you may feel at this difficult time.
• Be mindful of photo settings - if you are worried about photos of your new life being posted online, consider disabling your settings so others can’t tag you in photos.  Take control about what gets posted about you.
• Think before you post - is this something that you would be happy for a judge to see?  If the boot was on the other foot, how would you feel about the post? 
• Areas to avoid – whatever you do, don’t share details of divorce or children proceedings online.
• Look to the future - one of the current quirks of Facebook is the “on this day” function, which collects old posts every day and displays them in a reminder to you at a future date.  One day, you’ll have moved on for the better, and seeing a reminder about a difficult time and how you handled it might not be the best start to your day.

Further information

If you should be affected by any of the issues covered in this blog or you have any questions, please contact Stacey Nevin or another member of our family team.