I am getting a divorce and my social media pages contains pictures of my new boyfriend or girlfriend and shows me when I drank too much. It shows that I am out 5 nights a week at different bars. What should I do with my Facebook pictures?
Recent headlines told of a Facebook picture showing a non-custodial dad smiling and showing off a fan of cash in his hand. The Court, faced with a person who has not paid child support, found the Facebook picture to be very powerful and evidence of an ability to pay child support. A picture is worth a 1,000 words.
People facing divorce, or in the middle of one, may realize that they posted inappropriate photographs or statements. Statements about a new love interest, tales of rigorous night-life activities, or derogatory statements about a spouse may have been posted on Facebook in a fit of anger or a desire to show off a new life. These pictures and statements may be used by a lawyer against you; it can prove infidelity or bad decision making. When a person's children are their Facebook friends, derogatory comments about a spouse can be used to limit access with the children.
What can be done after the fact? Can someone remove pictures or statements off of their Facebook account, or can they just shut down the account?
Rhode Island, like most states, has a doctrine of spoliation that provides that the deliberate or negligent destruction of relevant evidence by a party to litigation may rise to an inference that the destroyed evidence was unfavorable to that party. Removing photographs of a drunken night out or rants about your spouse from a Facebook page is spoliation, whether done before the divorce is filed or during the divorce proceedings.
Even if you shut down an account, a subpoena to Facebook may provide the history of the page and the photos themselves. Therefore, the best advice is not to post those items in the first place and then not to remove them if they have been posted.
For more advice in divorce planning or in representation, contact Steve Hirsch, Esq. at 401-352-1000.