Can My Social Media Be Used Against Me in Divorce? | 71

Can my social media be used against me in divorce? Short answer? Yep.

Today we’re talking about one of the biggest divorce mistakes people make without even realizing it.

Social media.

You might think your Facebook, Instagram, TikTok, or other accounts are just a place to share what’s going on in your life. But when you’re going through a divorce, a custody dispute, or even mediation, those posts can take on a life of their own.

And here’s the problem: what you think is a harmless photo, funny caption, or venting session might look very different to a judge, mediator, opposing attorney, or your ex.

In this episode, family law attorneys Kelly Bennett and Alexandria Zeis share real-world examples of how social media shows up in divorce cases and why it can quickly become “Exhibit A.”

Here’s what we’re talking about:

• Social media can be used against you in divorce court
• How screenshots can live forever, even after you delete a post
• Why deleting content can create an even bigger problem
• How social media can affect child custody and co-parenting issues
• What judges notice when they’re evaluating credibility
• How posts can impact spousal support and financial claims
• Why online drama can derail divorce mediation before it even starts
• When it may be smartest to simply go dark on social media

We also talk about parental alienation, oversharing, posting during parenting time, and why your online life can tell a very different story than the one you’re presenting in court.

The big takeaway?

If you’re going through a divorce, think before you post.

Or better yet… take a break from social media until your case is behind you.

About Kelly Bennett, Esq.

Kelly Bennett, Esq. is the host of  The Splitting Smart Podcast. She is a senior attorney at Sapere Law & Mediation in Temecula, California. 

About Alexandria Zeis, Esq.

Alexandria Zeis, Esq. is a senior family law attorney at Sapere Law & Mediation in Temecula, California.

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RESOURCES

MEDIATION STARTER GUIDE: https://mailchi.mp/2939c428981d/mediation-resources
KELLY'S BOOK: Victim Is Not Your Name https://a.co/d/e4VguRk
LEGAL & MEDIATION HELP: https://saperelawfirm.com
INSTAGRAM: https://instagram.com/saperelawfirm
FACEBOOK: https://facebook.com/saperelawfirm

Transcript

Kelly Bennett: 0:00

The bottom line is what we don't want to see is your social media become what we call Exhibit A.

Alexandria Zeis: 0:05

When you're also in court and you've got binders stacked up of just words everywhere what's great is a picture, just a picture.

Kelly Bennett: 0:33

Welcome back to the Splitting Smart Podcast. I'm Kelly Bennett, a senior attorney here at Sapere Law & Mediation, and joining me today is our senior family law attorney, Alexandria Zeis, or Zeus, as we call you. Yes. So thank you, and welcome to the studio. We're going to be seeing a lot more of you, Alex. All right. Well, today we're going to talk about this topic of can my social media impact me negatively in my divorce case, whether I'm in court or in mediation? It's a big one. We get this question all the time, don't we?

Alexandria Zeis: 1:12

And it comes up in the cases where you don't get the question. Right. And that's maybe just as bad.

Kelly Bennett: 1:16

Right. Exactly. Exactly. What's the short answer to that question?

Alexandria Zeis: 1:20

Yes. Yes.

Kelly Bennett: 1:22

100% yes.

Alexandria Zeis: 1:23

Yeah. I mean, it's a public announcement. So it… You just have to think of it that way. You might think it's only your friends are seeing it, but inevitably you or your ex are going to wind up getting in other relationships. You're going to talk to your friends about what's going on in your life, and they are going to get curious.

Kelly Bennett: 1:43

Yep. And it's natural to, to do that. But what we tend to advise people is, all right, we're rolling into a divorce case. We're going to be down at the court and if we've got an attorney on the other side paying attention, we don't need the noise of your social media. So what do we tell people to do? Not delete your account, but what, just silence it. How do you silence the accounts? I think it's you, you suspend it, right?

Alexandria Zeis: 2:09

They each have that option, and I mean, you might have to do a little digging. Maybe even just do the chat because to go through all the options, it'll take longer.

Kelly Bennett: 2:19

Yeah.

Alexandria Zeis: 2:19

But they have that feature. I know, I've used it. And then everything's there. Because what we also don't want to do is have you delete it and then have an issue with the, you know, deleting evidence later on.

Kelly Bennett: 2:34

Right.

Alexandria Zeis: 2:34

So you can't get rid of it, but you can set it aside.

Kelly Bennett: 2:38

Right. And not make it obvious. What a lot of people will do is, we've got many cases where one party, we've got an active one right now where the wife is asking for spousal support, and she's claiming she's disabled and doesn't have any income and that she lives alone in the house and all of this. On the flip side, her social media shows her out partying almost every night, talks about her work and her cash under the table that she's getting…

Alexandria Zeis: 3:07

Mm-hmm

Kelly Bennett: 3:07

And most importantly, her live-in boyfriend. And here in California when you have a live-in, you know, mate, then there's a presumption under the law that you don't need spousal support. What she's done is instead of taking it offline, this is a Facebook account and Instagram, what she's done is she's just blocked our client, but they have a lot of friends and family, and guess what they're doing? They're…

Alexandria Zeis: 3:33

Everyone else is watching it.

Kelly Bennett: 3:34

Right.

Alexandria Zeis: 3:35

Everyone else taking…

Kelly Bennett: 3:36

Taking screenshots… Alexandria Zeis: Mm-hmm, screenshots. Right. And then they're sending it to them, and that's even worse though because then if you're caught later, you know, you have that moment, you have that freak-out moment, and if you hit delete, now you got a problem, because now there's a screenshot of what it was- Right, and-

Alexandria Zeis: 3:52

And now it's gone.

Kelly Bennett: 3:53

Yep, exactly, so it looks like you're tampering with evidence or trying to suppress evidence. So that's not cool. So the bottom line is what we don't want to see is your social media become what we call Exhibit A. so it would be an exhibit to any kind of filing we're making with the court, like that case we're talking about with the wife who wants spousal support. Well, guess what's going to show up in our opposition to her request to the court is Exhibit A, Facebook, baby. It's all over, all over the place.

Alexandria Zeis: 4:24

And you, you know what? When you're also in court and you've got binders stacked up of just words everywhere because, you know, all the filings, what's great is a picture, just a picture.

Kelly Bennett: 4:36

Yeah.

Alexandria Zeis: 4:36

That's all you have to show the judge. Yeah. You don't have to say anything.

Kelly Bennett: 4:38

And sometimes it's just as small as a funny caption. You think you're being a smart aleck on the, on your captions, but, boy, we can really…

Alexandria Zeis: 4:46

or in the comments, and then it starts another thing.

Kelly Bennett: 4:48

Yes. Yeah.

Alexandria Zeis: 4:49

Yeah.

Kelly Bennett: 4:49

Exactly. So, so we don't want to see it as Exhibit A, and the two main areas, we've kinda touched on a little bit of it, but the two main areas where we see social media really creating some hiccups for people is, 1) in parenting and co-parenting issues and, 2) in finances. So let's talk for a second about the parenting and co-parenting. How can social media be used against you when it comes to custody and time sharing and co-parenting?

Alexandria Zeis: 5:18

Well, so my answer to this is… I mean, if you have custody of your kids, and all of a sudden you're posting on social media, and your ex knows that you have custody, it begs the question, where are the kids?

Kelly Bennett: 5:33

Right.

Alexandria Zeis: 5:33

What are you doing? This is supposed to be time that you have with your kids, that you should be focused on them, doing things with them. And if you've just parked them in front of the TV or an iPad, and then you've gone in the other room to go post on social media…

Kelly Bennett: 5:47

Well, that or even, even the pictures of you in Las Vegas for the weekend with your girlfriends or with your man friends…

Alexandria Zeis: 5:54

Mm-hmm… Kelly Bennett: On a weekend that question is, where are the children? Are they out in casinos?

Are they at shows till 2: 6:00

00 o'clock in the… Of course they're not.

Alexandria Zeis: 6:03

It creates questions, and that creates suspicion. And then if you actually are doing well in a co-parenting relationship, it can very easily turn. And you might not even know why. You have no idea why, you know, your ex is all of a sudden just enraged with you.

Kelly Bennett: 6:21

Right. So- Well, and I think also, this is an area where when we have parents that are very angry about the divorce… where we can see parental alienation conduct going on. And so those will be the angry posts about, you know, "I had to take my kids to the doctor again because Dad doesn't take care of them when they're with him, and they get sick all of the time, and here we go…" I mean, it is amazing how much bashing is going on on social media. But the problem is, we can bring that to the courts for our judges to see. And that creates some real hiccups, because if it looks like you are alienating and you're the parent least likely to promote and foster that kid's relationship with the other parent, what's the court going to do? It's going to consider it.

Alexandria Zeis: 7:08

Well, especially if that kid happens to follow you or is a friend with you, and so they're seeing it in their feed. You're not thinking about that. But they are.

Kelly Bennett: 7:17

Yeah.

Alexandria Zeis: 7:17

So…

Kelly Bennett: 7:17

Or their friends are and they say, "Oh, my mom said this, that, or the other." Right? So it's, it's really important. So co-parenting and parenting issues. Let's talk about financial issues. We kind of touched on it with spousal support as seeing the boyfriend and we're going out partying. How else can it affect the financials?

Alexandria Zeis: 7:35

Well, I mean, I think just in general, no one's, you know, putting reality up online. So you want to have, you know, have the memories of the fun experiences, but the problem is, is that's probably not your daily life, and it's probably not going to be what you're telling the court about. So it goes to your credibility. It undermines everything. And quite frankly, if you're going in front of a judge, judges are very private. They don't have their families on social media, any sort of website, anything you can find out about them, and they don't post. So you have to know your audience, and then know they're, they are, I mean, they're literally called judges, so they're going to judge you for what you're doing. But they can't sympathize, they can't understand, because if this is your case, and you're worried about your kids, and you're worried about money, all you had to do was not post. It's so simple.

Kelly Bennett: 8:30

Let's talk about how this affects mediation, because we do a lot of mediations here. Divorce mediation is, in our opinion, the way to go. Alex and I both work very hard to settle our litigated cases, our court cases. But divorce mediation is absolutely the e-ticket ride to less expense, never darkening the door of the courthouse, all of that. However, it doesn't help us as we are having parties come in to mediate when they have all of a sudden decided to take to social media between they decide together, "Okay, yes, we agree. We're, we're adults. We're going to be civil. We're going to come into mediation," and then between the time they agree on that and the time they actually have their first session, because there's some prep work that needs to be done. If we decide we're going to start posting some really unkind things out there, what happens? It can either take the mediation 100% off the table, the other side says, "Forget about it. Screw you, I'll see you in court." Right? Or it just it is a polarizing effect, so then it makes our work harder as mediators to come in and say,"Okay, what is this anger about?" And it gets barfed out, and now we spend a third of the time in our mediation session-

Alexandria Zeis: 9:47

Right… Kelly Bennett: …overcoming And, and you didn't pay to mediate about social media. But it, it get, you get so distracted. And honestly, when someone's in that mindset, you're not going to get anything done with them, because they are spiraling. So…

Kelly Bennett: 10:05

Yeah… Alexandria Zeis: You know, and then refocus, and then everyone's on edge for the rest of the day, and that's not what you want to have when you're trying to actually get your life together, get settled, and then not have to return. But if you waste half the day on it, I mean, you wasted half the day on it. Right. So the bottom line is we think it's probably best to just go dark on social, social media while you're focusing on your case. And if you don't, then use it the other way around to create a history of being a cooperative co-parent and complimenting the other parent, posting pictures that kinda signal to your kids,"It's okay to love the other parent. Look they had such a great time this weekend with their dad." Most people can't be big enough to do that, but let me tell you, if you can-

Alexandria Zeis: 10:55

Yeah… Kelly Bennett: It's a, a game changer. And it takes the wind out of their sails too, because if they want to fight with you, just pick a fight 'cause they're angry and they're not happy and something didn't go their way, and they start picking at you, and then you just cannot be bothered, it takes the wind out of their sails. You know, y- all of a sudden you've just disengaged. You've dropped the rope and you're done. And they can keep trying, but I mean, they're just going to look silly after a while.

Kelly Bennett: 11:24

Yeah. Yeah.

Alexandria Zeis: 11:24

But… And I will say, too, it's not just during the divorce, because within the six months after you have a judgment entered that can get set aside very easily. So if you go crazy and decide to celebrate, and you're out having this big party, and meanwhile there's a little buyer's remorse going on on the other side, that is a surefire way to just get it blown up.

Kelly Bennett: 11:51

It's an invitation. It's an invitation. Yep. So social media is just, it's, it's something to be handled with kid gloves, I guess you

Alexandria Zeis: 11:59

would say. And it will always come back up, so you know. It's forever.

Kelly Bennett: 12:04

Yep. So we're, we're really good at using it. You don't want to face somebody like us who knows how to use it, right?

Alexandria Zeis: 12:11

We'll find you. Right.

Kelly Bennett: 12:12

So all right. Well, that'll wrap it up for this little episode. Hey, if you're interested in figuring out, "Hey, I have to get this divorce done. I have to get it done out of court. I don't want to spend three years and $100,000 doing it," hit us up. You'll see the link below, to make an inquiry, and we'd be happy to meet with you on it. Also, as always, I always like to point to this. This is a little book that I wrote, and we use it with all of our clients. It's about your identity and, and defining who you are as you go through the divorce process. Victim Is Not Your Name. It's about empowering you to look forward to the positive journey ahead of you, instead of getting mired down in the drudgery and sludgery of divorce.

Alexandria Zeis: 12:56

Yeah. And all it's saying is what your name isn't. So you get to decide…

Kelly Bennett: 13:00

that's right… Alexandria Zeis: Who you're going to be. 100%. All right. Well, Alex, thanks for joining me.

Alexandria Zeis: 13:04

You're welcome. Thank you for having me… Kelly Bennett: A great convo. I'll have you again, as you know. All right. Peace out.