Question: How can you tell me what I can or can’t post on my own social media? You have no right to control my First Amendment right of free speech and how I choose to express myself, my emotions, and feelings on my own social media account.
Answer: Freedom of speech is not a blanket ticket for anyone to say whatever he or she desires on social media. There are caveats to the right of free speech that protect against improper speech and there are consequences for engaging in such speech.
In a divorce, do not post on social media about your soon-to-be ex-spouse, details of what led to the breakdown of your marriage, and/or any parenting disputes or what you believe to be his or her failings as a parent. It will be your worst mistake. Understanding that everything you say on social media can possibly be used against you in court is the first step to understanding that your words can make or break your case. Sometimes, the success of your divorce case can depend on not insulting your spouse or the father or mother of your children on the internet.
Your statements and actions on social media can be used in a court proceeding determining the outcome of custody, visitation, equitable distribution, and the divorce itself if a party filed on fault grounds such as adultery.
Do you like your paramour’s pictures, post pictures of your trips with him or her, post videos of you drinking in front of your children, or engaging in improper or illegal activities around the children? Every action memorialized on social media is subject to disclosure via discovery. Please note that blocking your spouse from your social media platform does not prevent an attorney from accessing such information.
Question: Well, I use my social media account to help me destress, vent, and not fall into a depressive mood – how do I find another way to decompress?
Answer: Attorneys understand that divorce can be traumatic and depressing. However, there are other paths to help cope with the mental drain that can be caused by a divorce proceeding.
Posting negative Tweets, Instagram posts, Facebook posts, or making a TikTok video about your spouse during the ongoing divorce proceedings can be deemed to be “disparaging” statements, an attempt to defame the character of your spouse, or—even worse—if you have children that have access to social media, an attempt to influence the child or alienate a parent.
Question: Are you saying I should not post at all during the divorce?
Answer: No, but here are some topics to avoid in your social media posts during or surrounding your divorce:
· The divorce case itself;
· Commenting on the actions of your spouse;
· Posting images of court documents from your divorce case;
Question: After the divorce is over, can I make remarks about the father or mother of my children or ex-spouse?
Answer: Most divorce documents will include a non-disparagement or non-harassment clause, so you need to be careful.
For instance, if both parties still have an obligation to each other such as shared custody of the children or the exchange of monetary funds (like child support or spousal support), making comments about each other can be considered as harassing, disparaging, or an attempt to alienate a parent from the other. And remember that defamation laws extend to social media postings.
The goal is to create fewer areas of conflict/issues during a divorce. So, retain an attorney that will advise you on how to navigate your social media during the divorce.
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