Social media has become so ingrained in most people’s lives that they don’t think twice about sharing details of what they’re doing, who they’re with, or where they are with friends or followers on myriad platforms. In the context of a divorce, however, their online presence can be a potentially rich source of information to shed light on contested claims regarding property division, spousal or child support, or child custody and visitation. Whether specific posts, photos, or social media messages can be used as evidence in family court depends on specific legal criteria governing their admissibility.
Even social media content that seems accurate and relevant to an argument that an ex is, say, hiding assets or is unfit to share custody, may be excluded if it is not authenticated properly or obtained legally. Understanding how the law protects privacy and governs how evidence should be gathered and verified is critical for ensuring that the court will consider social media evidence as part of a divorce.
- Social Media Evidence in Divorce
- Legal Guidelines for Social Media Evidence
- Collecting Social Media for Divorce Cases
- Frequently Asked Questions
Is your ex trying to paint a false picture of you with what you’ve posted online?
Social Media Evidence in Divorce
What constitutes someone’s digital footprint on social media can include much more than they realize at first. In addition to posts on Facebook or photos shared on Instagram, it can also encompass posts on platforms like X (formerly Twitter) or Bluesky, messages on Snapchat or WhatsApp, comments on YouTube or TikTok videos, and more. Social media evidence in divorce cases, such as social media use and custody rights, social media and court orders involving co-parenting, or this information in this post, can be relevant to a divorce case to the extent that it provides insight into someone’s lifestyle, financial status, parenting practices, or ability to provide a stable environment.
For example, if one party is pleading financial hardship to avoid paying spousal support, their frequent posts about lavish vacations, luxury purchases, or expensive meals can be used to undermine their argument. The content of what someone chooses to share online can be a mosaic of clues that, when taken together, form a compelling picture that can influence the court’s decision-making. Consulting with an experienced family law attorney can help identify the key pieces of social media evidence that support a party’s case and ensure they are obtained properly so they will be admissible in court.
Legal Guidelines for Social Media Evidence
In California’s Evidence Code § 140, evidence is defined as “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” In court, evidence presented must have some bearing on the issues in the case, not be overly prejudicial, be authentic, and be legally obtained to be admissible. For social media, the latter two standards can present technical challenges and ethical considerations that can prompt mistakes which could cause the court to throw out information that might otherwise be permitted.
Of primary importance is whether the information on a social media account is public or not. If the account is public, then the account owner has no reasonable expectation of privacy and any information posted there can be fairly gathered without a court order. If, on the other hand, the account limits access to its content, as in a Facebook account with privacy controls set to “Friends Only,” then content will most likely need to be sought through formal discovery processes. Using unauthorized access to an ex-spouse’s social media accounts to try to find evidence can be considered a crime in California, and illegally obtained evidence is generally not admissible. A family law attorney can provide essential guidance to ensure that evidence is gathered according to the law and pursue relevant social media information through well-crafted discovery requests.
Authentication of evidence is also a serious factor with evidence from social media. It is relatively simple for someone to create a fake profile, alter photos or videos, or otherwise fabricate digital information that is supposedly of or by someone else. A simple screenshot is usually not enough to establish that a post or message exchange is legitimate. Bringing in a digital forensics expert to collect and preserve online evidence and establish a forensically defensible chain of custody can protect against allegations that social media data has been faked or tampered with. These experts record details of metadata and other underlying technical information that shows how and where information was obtained and helps establish when, where, and by whom a post was made.
Collecting Social Media for Divorce Cases
Anything posted on social media—writing, photos, videos, messages, location check-ins, comments, etc.—can potentially serve as evidence in a divorce case. Unfortunately, attempting to gather clues from your ex’s social media activity without the proper expertise or understanding of the law could result in some of the best support for your position being excluded from what you can present in court. Consulting the appropriate legal and technical experts will help ensure that you stay in compliance with applicable laws and rules of evidence and that the digital evidence gathered will be properly managed.
At Hoover Krepelka, our family law attorneys have a track record of working effectively with digital forensic specialists to obtain critical information from social media and other digital sources to build the strongest possible cases for our clients. Our knowledge of how social media usage can affect family law cases allows us to help our clients navigate through its complexities to protect their interests and advocate for a favorable outcome.
Expert Family Law Representation in Silicon Valley
If your ex is representing themselves one way in court when their social media tells a different story, or they are trying to paint a false picture of you with what you’ve posted online, the risk of that information unfairly affecting property, support, or custody decisions is real. Social media evidence in divorce can be a critical factor in these cases. The team at Hoover Krepelka can provide the support and advice you need to incorporate social media evidence into a successful legal strategy. To schedule your consultation, fill out the form below.
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FAQs
How do lawyers gather social media evidence for divorce?
Lawyers may gather social media evidence for divorce by obtaining publicly available posts, images, or messages, or through subpoenas to access private accounts with consent or court approval.
Can social media posts be used as evidence in a divorce case?
Yes, social media posts can be used as evidence in a divorce case if they are relevant and authenticated, showing information such as behavior, assets, or other pertinent details.
What types of social media content are admissible in court?
Admissible social media content includes posts, photos, messages, or videos that are relevant, properly authenticated, and comply with legal standards for evidence.
