Yes, yes your private Facebook messages— and Insta, Twitter and LinkedIn DMs— are all admissible in Court.
While that’s the straightforward answer to the question ‘Can private messages be used in Court?’ as with Facebook’s relationship statuses…it’s Complicated.
Way back in the stone ages of social media, lawyers were finding their footing to present screenshots as evidence. Nowadays, creeping on an opposing party’s Facebook page, Insta account, and yes, even AdultFriendFinder and Ashley Madison— is taken as standard operating procedure in almost any family law firm.
But what about the stuff that’s not on your wall? That’s your 3am DM to your bestie, that you type furiously under the covers while your emotionally exhausted toddler is sprawled across your bed because she had another anxiety-induced nightmare.
To many people, private messages feel different than posts. Most of us mamas have enough discretion to avoid posting rants about our co-parents on our wall, but feel safer in the relative intimacy of Facebook messenger or Insta’s DM feature. While they may seem like an ideal place to pour your heart out, those “private messages” can and do end up in front of a judge on the regular.
Scores of cases regarding the use of social media content in divorce have spun through Courts across the US— all the way up to Supreme Courts in some states. By and large, rulings are coming down that say social media content is not protected, and that you can be compelled to turn over your messages to your opposing party.
The legal reasoning behind this is slightly nuanced state-to-state, but the general guiding framework is this: anything that is not subject to the protection of privileged communications is fair game to be requested— or subpoenaed, should you make the ill-advised decision not to comply with requests— by your spouse or their lawyer. ‘Private’ messages are subject to the same rules of discovery (the fancy legal term used for the process of exchanging information during litigation) as any other communication that’s not privileged.
In general, anything— DMs, emails, text messages— that is not subject to privilege laws must be turned over if requested, and can be presented as evidence. This means that, in general, unless it’s something that you’ve written to your attorney, your pastor, or your doctor, you can be compelled to turn it over to your spouse during your divorce proceedings.
When our firm signs a new client, one of the first things we do is send a friendly little letter outlining clear advice about using social media. To concisely paraphrase, it says DO NOT POST ABOUT YOUR CASE ON SOCIAL MEDIA (like we said, friendly). The reason we do this is to protect our clients; we have seen many a mom embarrassed by photos partying at a bar on nights when she had custody, or sporting new Devil-Wears-Prada worthy duds while fighting for alimony (side note: please don’t be this girl!).
But this warning brings us back to the wall conundrum; posting on a social media wall feels public, messaging your girlfriend about the latest jerk move your ex has pulled feels private. The harsh reality is that both can be trotted out in Court…along with your text messages and emails. It’s scary but true.
In addition to being able to request your DMs, there are easy tech solutions for attorneys to download your social media history. There are private firms and software that exist for the sole purpose of ‘capturing’ a person’s social media history— everything they’ve ever posted, messaged, and deleted. Additionally, lawyers can capture metadata from your social accounts, meaning that IP addresses, timestamps, and your location can all become evidence in your Court case.
We lay this out here not to scare the crap out of you, but to help you become conscious about what you say to whom. During divorce proceedings, most of your communications are fair game for the other side to use to build a case as to why their requests— whether that be for a particular custody schedule, a monetary settlement, or child support award— should be granted.
So what does all this translate to, bottom line, if you’re preparing for a custody battle or headed into Court because you and your ex haven’t been able to settle your differences through mediation or other means? While all of the legal-ese surrounding social media messages feels complicated, there are actually some simple guidelines to help you stay safe. Here are our top tips:
First and foremost, stop using your DM features for anything related to your divorce, your finances, or your children. While this may seem straightforward, make sure you really think globally about what you share on Messenger.
If you have a side hustle like a BeachBody team that uses messenger to communicate as a group, and generating income is one of the topics that comes up in your threads, ask to be removed from the thread for the foreseeable future. All of this could come into play in Court, so best to be safe.
While it may seem smart to clean up any unflattering messages that may be in your history, deleting any content (Facebook, emails, texts, etc) is actually considered Destruction of Evidence in many jurisdictions. Icky consequences like having to pay to recreate your content (BIG BUCKS!) and pay for your opposing party’s attorney’s fees can come with this, so please don’t hit delete!
Seriously. Go. The best way to stay safe and ensure that you’re going to have an outcome in line with your long-term goals is to have qualified counsel helping guide you. If you are without financial means to secure representation, at least have an initial consultation with an attorney in your area. Some law firms will meet with you for a relatively low fee, or even for free. The information you gain in just a consult alone can help answer some of your bigger questions about the process and any implications that may stem from your social media use.
Do not play coy if your spouse (or their attorney) requests your social media messages. In theory, failure to turn over your requested information to your opposing party can result in your spouse’s attorney filing sanctions with the Court. While these may not get granted, it isn’t fun to have to explain to a judge why you chose not to follow the rules.
Above all else, try not to stress too much about your social media messages being used in Court. Whatever is already in your message history has already happened. It is what it is, as the cool kids say. You can’t change it, and deleting it can have worse implications than having your attorney do their best to mitigate the impact of whatever is in there. There is no use losing sleep over something that you can’t change. Find an attorney you trust, and work with them to find a solution to any concerns that come up as a result of social media mishaps.
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