Social Media, Texting and Divorce are a Bad Mix
My general advice to clients in the midst of a divorce is to curtail social media use and texting as much as possible.
This is because social media posts and texts are both discoverable, which means the other side can request them and use them as evidence in court. An attorney can issue subpoenas for activity and conversations from Facebook, Instagram or similar sources. We have seen clients receive a friend request that turns out to be an account created by a soon-to-be-ex spouse, or maybe his or her mom, brother, or friend. Once they have access to your page, they can watch and download items to help their case (and hurt yours).
So that is why I recommend shutting everything down at least during the time your case is pending. Facebook, for example, will let you de-activate your personal page and re-activate it later. But do de-activate, and don’t delete. In divorce or child custody cases, one of the first requirements of a typical temporary injunction is to prohibit deleting texts, Facebook postings or Facebook Messenger messages, or other social media accounts.
I also tell people to be cautious in your actions and not think of your personal Facebook page as your only social media exposure.
For example, you and your friends go out one night to celebrate your new freedom. Of course, they have cell phones and start posting pics of your crazy adventures, sometimes even tagging you. The next thing you know, you are trying to explain to an ex, or even the judge, why going out to a bar on a Thursday night was more important than spending time with your kids.
Texting can also come back to haunt you. Not only do you need to be aware of how your texts to your ex would look in court, a text to a friend or acquaintance bad-mouthing your ex could backfire in court.
As an attorney, I frequently tell people that if you don’t write it down (or text, or post, etc.) you don’t have to worry about that writing being used against you. This does not mean you can speak whatever you want without penalties though: some states, including Texas, allow people to record phone calls without asking permission from the other party to the call. So anytime you have a phone call with an ex-spouse or soon-to-be-ex, assume that this conversation could be played in court in the future.
Will your words on the call contradict your words in court and make you look like a liar? Will your words tell the Judge you really don’t attempt to co-parent?
Yes, it is easy to want to vent, especially when talking with sympathetic friends or family. But keep in mind that if you discuss “finally getting rid of that crazy spouse”, more disparaging and unflattering information may come out as the conversation goes on, and that can even lead to rumors or allegations that are not true.
In short, don’t lose your case before you even get to court because you were careless with your words on social media or in texts.