Parties to a divorce proceeding frequently believe a party can avoid having his or her own Facebook page used against them by limiting the other parties with whom they are “Facebook friends.” Specifically, the limitation would be that the party would not be “friends” with their spouse. However, social media sites are fully discoverable by the opposing party in a divorce or legal separation proceeding and may at times, depending on the circumstances, be admissible as evidence.
Even if a party to the case is not “friends” with his or her spouse on Facebook, the parties both could still be required to produce all contents of their social media pages. Additionally, certain rules apply when a divorce is contemplated or the case has already been initiated. If the case is pending or being contemplated, if a social media page or even a picture on a social media page is deleted, this could be considered spoliation (similar to destruction) of evidence.
If a Court finds that there was spoliation of evidence by either party, the Court may enter sanctions. Sanctions may include an adverse inference to the party who destroyed the evidence. In other words, the Court could make a finding without ever seeing the posting that the destroyed evidence was harmful to the case of the party who destroyed it. Therefore, no matter whether you are contemplating divorce or are already involved in a divorce proceeding, you must be cautious when posting!