Social Media as Divorce Evidence?

Who needs to hire a forensic accountant, a detective, get third party assessments for parenting, or obtain court orders to obtain financial disclosure in your divorce settlement? All you have to do is sit at your computer and mine social media sites, which have a plethora of information.

Sources of Social Media Divorce Evidence

• 46 % text messages
• 30% emails
• 12% call logs and phone numbers
• 41 % from Facebook
• 17% from Twitter
• 16% from Instagram

Although this is a U.S. stat provided by California Divorce Mediators based on surveyed attorneys, it is nonetheless scary for anyone facing divorce in Canada, the U.S. or anywhere.

Social Media is NOT Private

I spent a significant part of my career in the corporate world, and the rule I followed was to assume anything I sent or said was sent or said to the party referred to in the communication. It cannot be easily taken back and is next to impossible to be refuted if it is in writing or, in today’s world, in pictures. Things are passed around with the speed of light, it seems. With a simple click, your 500+ friends on Facebook can,  repost you, retweet you, and so on. The security measures you can place on your profiles will never eliminate public access, as you cannot control what the people in your circle will do.

When it comes to divorce, mediation can offer privacy. Parties are motivated to settle financial and parenting issues fairly without the need to “seek out” incriminating evidence on social media to leverage the outcome in their favour.

How is Social Media Harmful to Child Custody Cases in Divorce?

I understand that going through a separation and a divorce can make one feel rejected, unloved, and lonely. You want the whole world, especially your ex, to know that you are moving on, having fun, and enjoying your life without them. You want to post those pictures of you partying with friends or a significant other and hope in some way your ex sees that you are not crying yourself to sleep, pining over what could have been. But do you need to show yourself with 10 drinking buddies, bar hopping or passed out after a night out or participating in illegal substances? It only has to happen once to impact your divorce.

Now, let’s assume you are a single mom or dad with 2 minor children at home who are dependent upon you for their care and well-being. What you posted online will become evidence to assess your ability to properly parent those children. Child custody claims may be decided upon your ex’s lawyer presenting social media evidence that infers you are an unfit parent.

Several of my clients have had marital breakdowns due to alcohol and substance abuses, or even domestic violence, in the past while married. In our law seminar, we discuss case law in Ontario where a court ordered joint custody of three young children when the mother was seeking sole custody. The court found that the father had taken steps to remedy past issues, and found that the father was a good parent and that his involvement in the children’s lives was in their best interests. Social media posts of current actions or behaviour can significantly impair your custody claims.

Impact on Child and Spousal Support and Asset Division

Determination of income is a huge challenge in many of my divorce and separation cases, especially if the parties are self-employed or own their own businesses. Income levels determine how much support will be paid. It is interesting to see how incomes post-divorce in some of these cases “decline,” or the business is no longer doing as well. Opposing lawyers or the spouses in my mediated cases dig up incriminating information on social media pages that show the spouse enjoying cruises, vacations, or driving a shiny new car that may call into question the reported income levels. It may also highlight assets that may have been concealed which otherwise would have been subject to division under family law.

Caution and Common Sense

No, I do not mean to encourage you to go hide your assets and income covertly. But before you post, assume it is being read or viewed by your spouse, your spouse’s divorce lawyer, your parents, your boss, and most importantly your children. If you need to talk to someone, do it with a close friend, trusted advisor, divorce professional, or a counsellor, and not your 500+ friends.

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Written by Mary Krauel, CPA, CA, EMBA, CDFA, owner and senior negotiator of PRM Mediation.