Family Law

How Do I Obtain Copies of My Spouse's Social Media Posts During Divorce?

By Kristina Otterstrom, Attorney
Learn how to get access to your spouse’s social media.

Today, social media has become an ubiquitous part of life for most people. Many of us have become accustomed to sharing photos, videos, or comments with close family and friends. If you’re a regular social media user, and you're going through a divorce, you should always err on the side of caution with what you share, because either spouse’s social media posts can become relevant to your case.

How Can Social Media Posts Affect My Divorce Case?

Today, many individuals share their intimate life details online. It’s possible to learn of a spouse’s affair, a secret gambling habit, or a drinking problem on Facebook, Instagram, or Snapchat. Online evidence of disparaging comments against your spouse, mistreatment of children, or an affair can all affect your divorce case.

For example, one spouse can use evidence of an affair as a claim for alimony. In many states, one spouse’s infidelity is a factor in deciding spousal support awards. When deciding custody, a judge will consider each parent’s stability and willingness to allow a relationship between the child and other parent. If you or your spouse’s social media page is filled with negative comments about your child’s other parent, or posts showing inappropriate behavior around the kids, it can harm your chances of getting custody.

This doesn’t mean you should immediately delete your online presence if you’re in the middle of a divorce, but you should always think twice before putting something online. And many social media platforms have detailed privacy settings that allow a user to prevent certain people, including a spouse, from seeing posts. It’s common for divorcing spouses to restrict their accounts in order to continue sharing information with friends that they want to keep private from their soon-to-be-exes. Still, you shouldn’t assume that a privacy setting alone will provide total protection.

If you’re the spouse seeking to expose your spouse’s affair or neglect of the kids, there are ways to lawfully access your spouse’s social media posts and use them in your divorce case. It’s important to follow the law, because if you try to obtain your spouse’s online history through deceptive or fraudulent means, you could find yourself in trouble.

What Online Activity Will Either Spouse Have to Produce During a Divorce?

Through the discovery process, you can request that your spouse produce copies of social media posts or photos. However, make sure their online activity is relevant to your case before requesting copies of your spouse’s entire online history. In some instances, you can obtain copies of your spouse’s public social media posts by simply going online. Also, one of your spouse’s online “friends” can lawfully provide you with copies of your spouse’s posts. By contrast, you could face serious trouble if you hack into your spouse’s account or use deceptive means to obtain information, such as creating a fake profile and “friending” your spouse. If your spouse’s posts aren’t public, you or your attorney will need to provide a formal discovery request for the information. Be as specific as possible in your request, and provide relevant dates for the information you want. For example, your spouse won’t likely have to produce a decade of social media posts just because you requested them. Instead, you might ask for all posts between March and June of the current year, or posts about you and/or the children. Judges don't like fishing expeditions, but can appreciate more limited, reasonable requests. A judge will balance each spouse’s privacy with the need for information that's relevant to your divorce.

Should I Delete My Social Media Accounts?

Proceed cautiously and talk to an attorney before deleting any of your online activity during your divorce. If it looks like you are attempting to hide evidence, you could be penalized for deleting posts. Instead, it’s appropriate to change your account settings to private, and keep your posts to a minimum while your divorce is pending. There is a difference between deactivating your account (a good idea) and deleting all your account activity (a bad idea).

Keep in mind that anything you put online can remain there forever. Also, strict privacy settings won’t necessarily protect your spouse from finding out about your online activities. If you have specific questions about your case, you should speak with a local attorney.

Questions for Your Attorney

  • What should I put in my discovery request to get evidence of my spouse’s online affair?
  • Can I access my spouse’s private emails or online messages?
  • I don’t know if my spouse has done anything online that would help my case. Can I request her entire social media history during the divorce?
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