Posted in Parental Rights
Once upon a time, divorcing spouses worried about letters, calendars, and the occasional photo album turning up in court. Today, the average smartphone contains more potential evidence than a filing cabinet, and most of it lives on social media platforms that never sleep. Facebook memories, TikTok dances, Instagram stories, disappearing Snapchats — even “likes” on LinkedIn — can influence everything from property division to child-custody orders as our Manhattan Beach, CA family lawyer who has received a 10.0 rating from Avvo knows all too well.
At Skarin Law Group, we’ve spent years guiding clients through California’s ever-evolving family-law landscape, and few trends have reshaped divorce litigation more than social media. Let’s explore how posts, comments, and digital footprints are discovered, authenticated, and weaponized, and how smart online behavior can protect your interests before, during, and after a divorce — and it can ensure that you do not make any common mistakes during your divorce.
1. Social Media As Evidence In The Basics
1.1 Discoverability
California’s Code of Civil Procedure allows “any non-privileged matter that is relevant” to be discoverable. Courts have consistently held that a post shared with even a single friend is not truly private. With the right subpoena or discovery request, opposing counsel may obtain:
- Public posts and profiles (no warrant needed).
- Private messages obtained through a discovery order or the other spouse’s voluntary production.
- Metadata—timestamps, geolocation tags, and device IDs that can corroborate or undermine a story.
1.2 Authentication
Screenshots alone aren’t enough. To be admissible, social content must be linked to the account holder and shown to be unaltered. Lawyers accomplish this through:
- Testimony from a platform’s records custodian.
- IP logs and login histories.
- Hash values that demonstrate files haven’t been modified.
Failing to meet authentication standards can get evidence excluded, but parties who try to bury or delete posts risk far harsher consequences.
2. The High Price Of “Innocent” Posts
2.1 Timeline Traps
A casual Instagram selfie with a new luxury car might contradict sworn statements of financial hardship. TikTok videos showing late-night partying could undermine a parent’s request for more custodial time. Even the act of adding a new romantic partner’s last name to your profile has been cited to prove a dating relationship began earlier than claimed.
2.2 “Hidden” Content Isn’t Hidden
Private Facebook groups, Snapchat streaks, and even ephemeral Instagram stories can be recovered via server archives or complicit friends. Courts rarely buy the argument that disappearing messages are truly lost.
2.3 Third-Party Posts
What if it’s your best friend posting about that Vegas getaway? California courts have admitted third-party content when it directly implicates a spouse’s actions or state of mind. Tagging can create a digital breadcrumb trail difficult to refute.
3. Custody Wars In The Age Of Reels And Stories
Family Code §3011 directs judges to weigh each parent’s ability to provide a stable environment. Social-media evidence now plays a central role in that evaluation:
- Substance use: Photos of drug or alcohol consumption may trigger custody evaluations.
- Parental Alienation: Angry rants or memes disparaging the other parent online can violate “no-derogatory-comment” orders.
- Child Privacy: Sharenting (oversharing images of children) can raise concerns about judgment and safety.
One ill-advised live-stream has derailed more than a few otherwise strong custody cases.
4. Financial Disclosures And Digital Receipts
California requires full transparency of assets and debts. Yet “soft” spending — cryptocurrency trades promoted on Reddit, unreported Venmo side hustles, or Etsy profits bragged about on Twitter — often slips through formal disclosures. Digital breadcrumbs can reveal:
- Hidden income streams
- Under-the-table payments
- Lifestyle inflation inconsistent with reported budgets
Failing to disclose can lead to sanctions, unequal asset awards, or—under Family Code §1101—an award of 50% to 100% of the undisclosed asset plus attorney fees.
5. The Perils Of Deletion, Blocking, And “Disappearing” Messages
5.1 Spoliation Sanctions
Ordering spouses to preserve electronic data is routine. Deleting posts once litigation is foreseeable can trigger spoliation penalties, including monetary sanctions, adverse inference instructions to the jury, or even default judgment on key claims.
5.2 Platform Takedowns Vs. Legal Holds
Facebook’s “Delete Account” button doesn’t override a court’s preservation order. If you’ve received a notice to preserve ESI (electronically stored information), consult counsel before touching a single setting.
6. Best Practices Before You File
- Audit Your Footprint: Scroll through old posts, comments, likes, and tags. Assume anything embarrassing will surface.
- Tighten Privacy Settings: But know they aren’t bulletproof.
- Stop Tagging Location: Real-time check-ins can be used to question parental supervision or spending.
- Archive Responsibly: Download copies of your own accounts. Authentic self-preservation can prevent the other side from controlling the narrative.
- Pause The Posts: A social-media hiatus rarely hurts a case; oversharing often does.
7. Navigating Social Media During Litigation
7.1 Adopt A Litigation Lens
Before hitting “post,” ask: How would this look blown up on a courtroom screen? If the answer is “awkward,” save it to the drafts (or better yet, don’t create it at all).
7.2 Avoid Indirect Messaging
Vaguebooking, subtweets, and cryptic TikTok lip-syncs can violate temporary restraining orders or be construed as harassment. Judges recognize shade even when you think it’s subtle.
7.3 Screen Your Circle
Friends and family often mean well but can sabotage your efforts by tagging you or posting commentary. Politely request a moratorium. In certain cases, mutual restraining-order language can make this a legal obligation.
8. How Attorneys Leverage Social Media
- Early Case Assessment: Quick scans of public profiles reveal tone, lifestyle, and potential weaknesses to guide you through tough legal cases.
- Discovery Requests: Tailored interrogatories and subpoenas compel production of private messages and metadata.
- Impeachment: Contradictory posts can dismantle testimony and reduce credibility.
- Negotiation Leverage: Producing a damaging message in mediation often prompts faster settlements.
- Protective Orders: To limit harassment or media leaks, counsel may seek orders restricting online commentary about the case.
9. Ethical Considerations For Lawyers And Litigants
The State Bar of California’s Formal Opinion No. 2015-193 warns lawyers not to advise clients to delete harmful posts if those posts are potentially relevant evidence. Instead, attorneys may:
- Counsel clients to change privacy settings.
- Preserve but deactivate accounts.
- Provide written litigation hold instructions.
For clients, honesty about past posts and proactive preservation are not optional, they’re legal responsibilities.
10. Post-Divorce: Digital Peace Treaties
Even after judgment, online missteps can haunt you:
- Modification Motions: New posts can reopen custody disputes if they show changed circumstances.
- Support Enforcement: Flaunting big purchases may prompt a Wage and Earnings Assignment Order.
- Defamation Claims: Bad-mouthing an ex online can escalate into separate civil litigation.
Creating clear boundaries — sometimes formalized in a “Social Media Clause” — helps both parties move on.
Control What You Can Control
Divorce is stressful enough without a digital paper trail undermining your credibility or financial position. While you can’t change past posts, you can shape future behavior:
- Think Strategically: Every post is a potential exhibit.
- Prioritize The Children: Their well-being and privacy should override the urge to vent.
- Consult Early: A knowledgeable attorney can craft a preservation and social-media strategy before mistakes happen.
Ready For A Confidential Conversation?
If you’re contemplating divorce or find yourself already embroiled in litigation, the experienced family-law attorneys at Skarin Law Group can help you work through the difficulties of social media evidence. Contact our CPA and Certified Family Law Specialist today for a private consultation and put a proactive strategy in place, online and in court.
