Social Media Evidence in Divorce

Almost all divorce lawyers are aware how helpful or damaging posts on clients’ Facebook pages can be in a divorce or child custody case. We are seeing more and more Facebook and other social media posts being introduced as relevant evidence in family law cases. These posts are often made public on Facebook pages well before the person retains a divorce attorney. Although we may wish those posts didn’t exist, the mere fact of the matter is that they do exist and instructing a client to remove those posts just might get you in big trouble. Let me explain.

A Virginia attorney instructed his client to delete photographs from his client’s Facebook page that, well, might have been damaging to his wrongful death lawsuit. Some background may be in order. Mr. Lester, unfortunately, lost his wife due to a fatal traffic accident and was suing Allied Concrete Company for the loss of his wife. Mr. Lester’s attorney discovered his client, after his wife’s passing, posted a picture on his personal Facebook page depicting him holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Upon discovering the post, Mr. Lester’s attorney, through his legal assistant, instructed Mr. Lester to “clean up” his Facebook page because they didn’t want “blow ups of other pics at trial.”

Although it seems obvious we would not instruct our clients to delete relevant evidence from their computers or destroy any evidence in a case, it either didn’t dawn on Mr. Lester’s attorney, or he chose to disregard the potential for sanctions relating to spoliation of evidence. Whether a matter of mere oversight or intentional disregard, the penalties imposed upon Mr. Lester ($522,000.00) and his client ($180,000.00) were nonetheless significant.

Social Media Evidence in Divorce | What Are the Implications

We sometimes learn valuable lessons from the mistakes of others. Attorneys just cannot instruct clients to destroy evidence, including deleting posts from their clients’ social media pages. Attorneys should also be aware that deleted information from Facebook may still be retrieved by issuing a proper subpoena to Facebook containing the correct “language” to retrieve deleted posts.