To Post or Not to Post? The Role of Social Media in a Divorce Case

Join us for our Facebook Live as we sit down with Attorney, Adriana Gomez, to talk through the role that social media can play in a dissolution case, and the best way to manage your social media presence when you're in the thick of your legal proceedings. 

In this interview, Adriana answers the following:

•    Can A Court Consider Evidence from Social Media?
 •    How Much Harm Can Social Media Posts Really Cause in a Legal Case?
 •    How Can An Attorney Utilize or Access Social Media for Evidence?
 •    What Advice Do You Have About Using Social Media Before, During, and After a Divorce?
 •    What’s on Your Do and Don’t List for Social Media Use During a Dissolution? 

If you would like to speak with one of our family law attorneys, please call our office at (503) 227-0200, or visit our website at https://www.landerholmlaw.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Transcript

Intro: 
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  0:28  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Family Law. Today, I'm here with Attorney Adriana Gomez to talk about the role of social media in a divorce, support, or custody case. Adriana, how're you doing today?

Adriana Gomez  0:49  
I'm doing great, Steve, how you doing today?

Steve Altishin  0:51  
I'm doing well, we have some sun!

Adriana Gomez  0:54  
I don't know, looking out my window, it's quite cloudy. 

Steve Altishin  0:57  
Oh my gosh. So before we start in, Adriana can you just tell us a little bit about yourself?

Adriana Gomez  1:03  
Yeah, so I'm an attorney with Pacific Cascade Family Law. My bread and butter is dissolution and custody cases. But prior to doing family law I had some really wonderful experiences, both in immigration and personal injury. And so you know, from those practice areas, my approach has always been super client centered. And I've really brought that with me to my family law practice. I'm also, you know, as a child, my mother worked for Child Protective Services. And a lot of my inspiration for becoming a family law attorney was from just watching those experiences. So this is a really personal area of law for me. And my favorite thing about it is just interacting with our clients and helping families come to positive and robust solutions that are going to serve them, you know, for the duration after we're done with our legal proceedings.

Steve Altishin  2:02  
Well, you're the perfect person for this particular topic. You know, sort of to paraphrase Shakespeare, 'to post or not to post',  I imagine if I were coming in, and I were active on Facebook, Instagram, Twitter, Tiktok, the first thing I'm gonna ask you is, hey, a judge can't look at the social media stuff, can they? They can't use it against me. Well, my first question is, can they?

Adriana Gomez  2:33  
That's a great question, Steve. And I think for people who have not been in court proceedings before, it's not a very intuitive answer. But yes, absolutely. Your social media posts matter. And I would almost say that no type of law do they matter more than in a Family Law proceeding. But you know, before we kind of get into why it's so important to have a cognizant and a purposeful presence on social media, if you choose to have a social media account during a divorce proceeding, we have to understand how social media is so distinct from our other mechanisms of communication that we use in our day to day life. And acknowledging its differences can inform us about how we use it, how we monitor it, and how we can control it, while we are in the midst of a family law proceedings. And I would also say that my approach, and I think most family law lawyers approach to the way we use social media during a family divorce proceeding, is we want to give our clients the best foot forward when it comes to managing our interpersonal relationships during a time where, you know, a lot of emotion and emotional volatility is up play. And I would say that the best approach in a Family Law proceeding with your communication is one of de-escalation. So what does that mean, right? That means avoiding a situation where you're going to aggravate or you know, trigger somebody's emotional response in a way that is going to diminish their ability to respond to you with reason and logic, and rather, you know, substitute those emotions with frustration and anger. And I can tell you, not only from the perspective that my clients have had in the past, but perspectives I've had dealing with an attorney dealing with other parties who may not be represented, and even parties who are, is that once that person's lid has flipped, and they are reacting to you in an emotional way and not a logical one, it becomes a lot more difficult to problem solve and find solutions. So yeah, approaching your social media accounts, the way we use our accounts and the way we communicate with other parties, we can do that through a method of de-escalation, which is going to be more fruitful for your results in the long term. And I know that there are a lot of parties out there, I've had the pleasure of representing some and defending against others, where angering the other party can be one of the primary objectives for that person, because they just don't have the emotional capability to, you know, maturely deal with certain interactions with other parties, from a place of reason and logic. So it's best to put that approach aside and come from a place of logic first, so that we can come to a more equitable solution.

Steve Altishin  5:41  
That makes sense, complete sense. And it made me think, you know, we've talked on some Facebook's about dealing with a highly conflicting spouse, or soon to be spouse. And in general, you'll be talking about, well, if they send you an email, don't react, or if they call you on the phone, don't react. But that made me think that someone who can be a good manipulator, especially of social media, could come off as very reasonable as they are provoking your social media to go crazy. So it's like social media is another one of those places where someone can manipulate you to do something you don't want to do.

Adriana Gomez  6:33  
Absolutely. And I think one of the cruxes of what makes social media so distinct, is that we have very limited control over who's going to see our posts. We may have an idea of who's going to see our posts, but we really can't be certain. And we don't know how things are going to play out in context. We might have an intention for how they're going to play out in context in a moment. But ultimately, with social media, the way that it has such longevity that we really cannot control-- even if we think we're deleting posts, so we don't know if they really exist still or not-- the impact that it may have may not be the one you intended in the moment. And so knowing that that is going to be the result of something that you're posting, perhaps on whim, is why we need to really have a second look on how somebody could misinterpret what we're posting, and know that we may actually be saying something we never intended to say.

Steve Altishin  7:34  
It kind of leads to a question I was thinking about asking was, how do people even know what social media you're on? I mean, how can an attorney find out what you're on? I mean, maybe your spouse only knows you're on Faceboo because that's the one they know about, but can attorneys actually get in and find out all the other ones you're known on?

Adriana Gomez  8:03  
Absolutely, we can and do. And I would say that one of the most powerful methods with which we discover information about someone is not just their social media account, but you know, a myriad other types of information that they may not have already disclosed to their spouse, is through a process that we call discovery. I imagine there may have been other podcasts on the process of discovery in the past. But the idea is, you know, we exchange a request between parties, and we just ask them to provide everything under the sun. And one of those things that we frequently ask for is social media profiles. So we will ask for literally every type of social media profile that they have. And we might even ask for passwords and usernames and basically everything we can get to access them. And I will say that even if you think that you're not going to produce it for the other party to review upon a provision of that request, the reality is that your ex spouse has friends who may be on your other profiles. They have, you know, acquaintances, and you don't always know what your spouse or soon to be ex spouse really knows about you. So even when you think that you're concealing things from the case and from the other parties, it's incredible what a very devoted legal team and ex spouse can accomplish when they have the impetus to do so. And I would say to that, that impetus, it can really range depending on the type of case. I think in a more financially motivated dissolution, it's not as much prevalent, but where you are going through a proceeding where custody and parenting time is involved and you have a parent that is very motivated to revealing things about your personal life that you have disclosed on social media, it is very likely that those things will surface. And it's another reason why we need to take steps to measure and control our use of it.

Steve Altishin  10:13  
Wow. So the attorney can actually go on the other party's website?

Adriana Gomez  10:24  
Absolutely. And, you know, Google is a very powerful tool, Steve. You can type the name and city of just about anyone, and Google will tell you what profiles they have, and it's really a few minutes search to find what's out there. And that's something that we can choose to do on our own time, or have our clients do for us to provide us with all the information that exists virtually about the other party. I know myself, I've had clients who have given me access not only to their own Facebook page, but they have taken screenshots of all of their spouse or ex spouses Facebook, and we just sit there and go through it and see what's out there. 

Steve Altishin  11:12  
Yeah, yeah. I mean, it sounds like it's now a regular and major part, like you said, of discovery.

Adriana Gomez  11:22  
Absolutely. It absolutely is, because, and I think that we'll find this a lot too, just in personal life, is there tends to be a tremendous dichotomy between what we're telling our intimate relations and what we're telling the broader audience of the people that we know. Those messages might be very, very different. And when there is a lack of congruence between those messages, I think that it's interesting for the case and potentially interesting for the court for the potential outcome of a dissolution or custody determination.

Steve Altishin  11:55  
Yeah, yeah. So let's kind of break it down into a couple of different parts of the divorce. 

Adriana Gomez  12:01  
Sure!

Steve Altishin  12:02  
Let's say I come in to you, and I say, you know, I'm thinking about getting a divorce, haven't filed, haven't told anybody, but thinking about it. What sort of social media advice would you give me kind of going into it before it's really even maybe discovered by my spouse that it's going to happen? 

Adriana Gomez  12:22  
Sure. I think one of the things about social media, which I think we're all kind of intune about, but maybe have not necessarily vocalized, is the way that social media really influences our most intimate relationships. Even before we're considering getting a divorce, the role that social media can play can really be a motivator for that outcome. And I had, there's been a lot of studies, and particular one that I recently read by the University of Maryland, about how social media has a way of substituting and competing with our family relationships in a way that detracts from our offline relationships. And I think that's just a simple part of the fact that our time is finite, but the way we use that time is infinite. And so when we are taking the limited amount of time that we should be devoting to our families, our spouses, our children, and replacing that with online relationships, that can be a really powerful factor that contributes to a breakdown of those relationships. And I think the typical example that I think a lot of people think of is, you know, the family dinner where everybody's on their phones, right? You know, in theory we are setting aside time for our families, but the dedication of that time in spirit is not really there. So I would also caution, individuals who are thinking about getting the divorce, and where there's an element of social media, is to find times to take back that online time, and dedicate it to offline time. And that may well provide the opportunity on the forum that may not have been there before, to have a dialogue about issues that are happening in the relationship and present solutions. That's maybe at the most basic level, but if I have a client coming in to me and they're saying, you know, I'm thinking about getting divorced. And they have all this all these social media accounts, I would say, you know, this is just another mechanism of communication that you have with your spouse and with your family. The only difference is we have a lot less control over the context and the information that is disseminated, and to whom it is disseminated. So, knowing that that's a distinction, the first thing I would say is, do you really need to be posting all the time? You know, to post or not to post, right? And I think that limiting your communication or even eliminating it completely, is a great place to start, simply because you don't risk any of the misinterpretations that can come with that kind of communication. Now, if you must post, then limiting that communication and focusing on other topics, besides posting negative content on your partner, you know, discussing reasons why your relationship is faltering. Even if you're saying it as, 'My relationship is faltering because of this', or in the more philosophical, you know, 'When relationships do this...' You know, I think the idea here is that you don't want to be making a communication about things happening in your life in ways that are going to aggravate the other party. Because again, we go back to that mechanism of d-escalation. Now, I would also say that even if you are using a different name, or identity on social media to post things, that is not going to necessarily help you for the reasons we discussed before. If your spouse knows, first off, that you have these accounts that are under a different name, maybe even a business name, and you are the one making direct postings, well, then that is still your account, that is still your communication. Same thing if other people know about it and are friends with that spouse and are willing to testify that that is, in fact, your account. Another thing is posting identifiers about yourself as well. So you know, posting pictures of your children, your pets, those are all things that can identify an account that is maybe not under your name as being yours. I would also say that you do not want to change your relationship status on an account until your relationship is actually completely legally dissolved. And I would say there's a lot of reasons for that, the obvious one being that it's a misrepresentation of your relationship, to say that you are actually single, when you are married, and going through a dissolution proceeding. It's not going to get you on the right foot with your ex spouse, and it's not going to get you on the right foot with a potential new relationship. And then the other part is that it's aggravating to the other person, because you are not respecting the process by which that relationship will be dissolved. So I will say those are just a couple of the big things I would tell someone.

Steve Altishin  18:00  
So I can answer, 'Well, yeah, I'm not doing that. We did go to this bar, and we met these people, but I didn't post anything. I was just there with these friends of mine. I don't know what they did.' Can their posts, if suddenly they end up in one of their friends posts-- it seems like that can also go wrong. 

Adriana Gomez  18:26  
I agree with you. And it does. I would say that if you are being tagged in images of your activities, it's, you know, really just a couple clicks more than what you would find on your own page, right? Because if you're being tagged, a lot of times those things will show up on your page. And friends are typically in the same kind of social circle. And those images will get disseminated as well to, you know, your ex spouse and other individuals who have contact with that person. So, again, this goes back to the fact that social media is a type of communication that we really don't know how to exercise control over. And during a legal proceeding, the most important thing that you can do is have control over your communication. Any attorney is going to tell you to limit the things that you say and who you say them to. The problem with social media is that we really don't have that capability by the way that it intrinsically works, which is why I tell most of my clients that it would be better if they either ceased posting or, you know, shut down their accounts. So yeah, it's a very difficult beast to control.

Steve Altishin  19:43  
Yeah. What about looking at your spouse's, and this also kind of gets into if the divorce proceedings have even started, I mean, I kind of I look back to Godfather to keep your friend close and your enemies closer. I mean, should you just say, I'm just not I'm gonna get rid of all my spouse's stuff, I'm not gonna go on anything, I'm gonna delete myself from them. I mean, are you sort of cutting off your nose to spite your face sometimes been by not being able to see what they're doing? Especially after the divorce has started, or does that really matter?

Adriana Gomez  20:18  
I mean, I think that's a good question. And I can see the multiple layers of how things would play out if you suddenly didn't have contact with your ex spouse's social media accounts anymore. But I would say that a lot of times early on in the fraying of a relationship, people are blocking their ex spouses, right, and they're blocking acquaintances that are mutual friends, or even just friends of the other spouse. So the likelihood that the other person is going to limit your access to their account anyway, and that's out of your control, is pretty high. So I would say that, you know, if that happens, then that's something that has been their choice. Now, that doesn't mean you can't get access to those postings later, through the the legal mechanisms that I previously mentioned, particularly for a request for production. So it's not that information is necessarily gone to you, it just means that you can't access it on a day to day and frankly, that may be better for your sanity. You know, you may have the self control to not post things about your current relationship with them, about potential new relationships that you're exploring, about activities that you're pursuing, but they may not. And if they don't, it can be very emotionally escalating for ourselves to be viewing the highlight reel of somebody else's life on social media, when you that information really doesn't pertain to your daily existence or your own self fulfillment. So if that happens, and you're no longer able to view their profile, that may ultimately be in your best interest. But I would say if that's something you're capable of doing, let your lawyer handle that, you know, and let them look through it, because the repercussions to your mental health by viewing the the postings of an ex spouse trying to put on the facade that they're living their best life may be really emotionally damaging.

Steve Altishin  22:26  
I imagine that even ramps up once you've filed, once they've filed, once the actual case is going to really tamp down on what you're doing. I mean, you're talking to your attorney, I guess you don't want to get out well, I saw my attorney today, and my attorney told me I should da-da-da-da..."

Adriana Gomez  22:46  
Yeah. I mean, I would always say listen to the advice of your attorney. If they're going to tell you something about limiting your communication or being particularly purposeful with your communication, or even just deactivating your account, I will follow that advice. So please don't take anything that I say as superseding your own attorneys advice; that is primordial in these things, they know your case, and they know the party. But I would say that some basic things that you can do once your case is started is, first off, change your passwords and change the access to your profile. You know, a lot of people will log in to their social media profiles on many different computers, and those computers may remember your password, right, and that just gives the person on the other end the ability to enter your profile, post on your behalf, read your messages, look through your posts, and basically leaves you exposed to all sorts of manipulation from outsiders. I think that's just a good rule for social media generally, whether or not it's within this, preceding the context of a legal proceeding. The other thing that you can do as well is limit the access that the public has to your account. So you know, you can go into your account page and change it from public to private access. And that will, you know, mean that a certain a certain group of individuals can look at your profile, typically people that you've provided authorization to or are friends with. But I would also say that the people in your own phones lists may be the very people who are disseminating the information to the individuals that you don't want them to see. So I mean, it's very easy for anyone to, you know, be scrolling if they have access to your web page, and then just take screenshots of things with their phone. So, again, going back to, we think we have control over this beast, but we really don't because of the ways that the individuals who ultimately have private access to it can be the catalyst for disseminating Information past the settings that we have put on it. And that's, you know, a really important thing to consider. Now, the other thing that I would do to provide further limitation outside the context of the device itself is to indicate to your close friends and family, hey, this is what's happening in my relationship, I just want you to be aware of it and would appreciate it if you did not post things about me, about my spouse, or about our children. And in particular, the piece about posting about children can become a very sensitive issue, when it comes to the process of a dissolution proceeding or a custody proceeding. And if you have children who you frequently like to post about, your best solution would either be to stop doing that until you have an agreement with your spouse, or to limit access to those images as much as humanly possible. Because the image of your children is something that, if you have joint custody over, is actually a conversation between two people and not just a unilateral decision. So yeah, it's very important to be careful about the images you post of yourself and also of your children during that time.

Steve Altishin  26:23  
What about your children's accounts? Are those--I was just watching something and then there was a 10 year old on Tiktok doing the stuff, and it just made me think, it wasn't even my question today, but can you go in--usually parents have some control over their children's accounts--I mean, can you go in and stop their accounts altogether? And if you can, should you? That seems like it's a tricky area.

Adriana Gomez  26:51  
Well, I mean, this is a tricky area. Just the issue of children having social media accounts is a tricky area, simply because most websites will not even allow your child to have a social media account if they're under the age of I believe it's 12, or 13. So when your child already has a social media account at age ten, that's kind of a concerning piece, but I would also say that children are the ultimate example of an unfiltered communicator, right? They have no ability to discern between what they really should and should not be saying. And in particular, where you have a divorce case, and especially where you have a volatile dissolution case, your children are the eyes and ears of your house, right, they can hear everything. And so if you are having communications about the dissolution proceeding, don't be surprised if some of that information ends up disclosed on your child's account. They just don't have another way to process these things other than to just say it out loud and share it with the world. So if your child has a social media account, I think the least you should be doing is monitoring that account for all the postings that they're making. And at its most extreme, if you have a child who is very sensitive to the issues that are happening in the home, and they find posting about it is, you know, one of the ways that they get the most emotional relief from that situation, then it may be time to deactivate that account until the proceeding is over. And that can be a really tough conversation with children, especially in the teenage years--finding that communication through social media is intrinsic to their social life. And so knowing that that might be the case, you might be awakening a different beast there. But these are all parts of the steps that we have to take in order to make sure that, as a family unit, you're going to come out the other side, in an amicable and healthy way.

Steve Altishin  28:57  
Going beyond the divorce, and this also really kind of feeds into the the kids is that, you know, a lot of people think okay, now I'm divorced, I'm free. I'm my own person again, I can do whatever I want. And I can just go crazy. And if I post about it, no, it doesn't matter. The divorce is over. You know, the custody is decided, I've got custody, we're good to go. The social media thing is also, I take it, relevant past your divorce decree.

Adriana Gomez  29:33  
Absolutely. It's as relevant during as it is after, I would say, and I would say that is just part of the fact that you have children that you're going to be raising with this other person who you may not have a romantic attachment to anymore for life. You know, the way that we are communicating with them is important, but the other piece is that even if, in a dissolution or custody proceeding, a judge ultimately issues a ruling in your case, that really doesn't have to be final if that other party decides that they later on have cause to modify it. So, you know, what does cause to modify look like? Well, it's typically determinative of the best interests of the children. So if you are, you know, seeing posts on your ex spouse or you know, your co-parents page that indicate that the best interest of your children is not being followed, that-- I will give examples of, you know, you see Mom partying every single weekend, or you see Dad, he's doing drugs in the posts or whatever, you know, there's all these sorts of sites when things happen, and we see them all the time. Those images themselves can be a cause to reopen that custody case and make a new determination based on the behavior that we are seeing in that moment. So it doesn't end. In the same way that, you know, divorcing with children, your relationship with that co-parent really doesn't end, it continues to go on and manifest itself in different forms for the rest of your child's life. And that's a really important piece to remember when you're in the thick of any family law proceeding is that you may be thinking that there is an end, but when there are children, there really isn't one. And we have to be mindful of that and respectful of that relationship.

Steve Altishin  31:30  
We just blasted through almost 30 minutes. But we've got one more thing I really wanted to ask you about, and that is back sort of to the idea that this is evidence, the judge can see it, the judge can know about it. And it obviously, I believe, is important that your clients tell you about what they've done on social media, because just looking at this, going into court and saying, Oh, I do A, I do B, I do C, I never do D I never do E, and then there's social media posts showing you not doing A, B or C and always doing D and E. And one thing I know about judges is once you lie to them, not just about that, they're not gonna believe you about anything. So what would you tell someone, I guess, who comes in and says, I've done some of this stuff that I posted that now I realize maybe I shouldn't have. Does that mean I'm just through, I can't winm I'm dead, I mean, what do I do if I've already done it? How do I go forward?

Adriana Gomez  32:47  
Yeah, I think the first piece is being mindful of what your posts have been. And if you aren't at a place to delete those posts, try to. But as has come up again and again, just by deleting it doesn't mean it's gone. So you need to be prepared for the eventualities and the possibility that the content of those images is going to come forward. And you're going to need to explain in a truthful way, the impetus behind those postings. I tell my clients all the time that the most important thing that we can walk into a courtroom with and the relationship with a judge is our credibility. Your credibility is your ability to communicate facts in a truthful way, right? Once the judge has caught you, even on a small lie, for one incident, the repercussions that it can have on the entirety of your case and testimony can be fatal. So it is so important that if you've done something wrong in the past, you've posted about it, it's out there, it's in the courtroom, the best thing you can do is be honest about it, and explain how that content is no longer necessarily representative of who you are and what your interests are. And that you have made a change in your life that no longer makes those posts congruent with who you are today. But the most important thing that we can do, once that case is initiated, is to keep our our record online clean. And to really limit our behavior on social media and the way that we communicate with others needs to be through a manner of de-escalation. 

Yeah, well, I I love this. This was so informative. I kind of take this as, you know, don't don't go to the No Tell motel and post about it. But if you did, say you'll never do it again. Don't go back and do it because you're gonna get caught.

Yeah, and you know, there's a lot of common sense lessons about how we communicate with people that have a little bit of a different context on social media, but they're all the same, you know? We we have an intrinsic idea of how to interact with others. But the piece that's different here is the longevity of those posts, the way that they can be taken out of context. And the fact that we don't have any control over who will see them and when they will see them. So knowing that those pieces are distinct, we can be a little bit more cognizant and purposeful about how we relate to others through social media. 

Steve Altishin  35:31  
Oh my God. Well, thank you so much. You put this out in an area of what not to do and really why not to do it, just in a clear, clear manner that's very understandable. And that's not easy to do sometimes. So, thank you so much for being here, Adriana, today.

Adriana Gomez  35:50  
Oh, thanks, Steve. It's been so much fun. I've learned a lot myself. So appreciate it.

Steve Altishin  35:54  
No, I so appreciate you coming on. And everyone else, thank you for joining us today. If anyone has any further questions on today's topic, you can post it here and we can get you connected with Adriana. And until next time, as I always say, stay safe, stay happy and stay well.

Outro:
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