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How Social Media and Digital Evidence Affect Your New York Divorce
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Social Media and Divorce
Social media has become part of daily life. From sharing personal milestones to staying connected with friends and family, platforms like Facebook, Instagram, TikTok, and X (formerly Twitter) offer a space for self-expression and communication. Despite its widespread use, social media and divorce do not mix well. Social media usage can significantly impact divorce proceedings, affecting everything from child custody arrangements to spousal support calculations. That seemingly innocent selfie from your vacation or that casual comment on a friend’s post could be used against you in court.
A survey by the American Academy of Matrimonial Lawyers found that the overwhelming majority of family law attorneys have seen social media evidence used in their cases. Here in Suffolk County, we see it constantly. If you are going through a divorce or custody dispute on Long Island, your digital footprint is part of your case whether you want it to be or not.
Can Social Media Be Used as Evidence in a New York Divorce?
Clients frequently ask “Can social media be used as evidence in divorce court?” or “Can social media posts be used in custody court?” The answer to both questions is a resounding yes.
New York courts routinely admit social media posts as evidence in divorce, custody, and family law proceedings. Under the New York Civil Practice Law and Rules (CPLR), social media content falls under the same discovery and admissibility framework as any other form of electronic evidence. There are two thresholds the evidence must meet. First, it must be relevant to an issue in the case, whether that is custody, equitable distribution, support, or credibility. Second, it must be properly authenticated, meaning the party introducing the evidence must establish that the post actually came from the person it is attributed to. Authentication can be accomplished through testimony, metadata, subpoenas to the platform itself, or circumstantial evidence tying the post to the account holder.
New York case law has addressed this directly. In Romano v. Steelcase, a Suffolk County Supreme Court decision, the court permitted broad discovery of an entire Facebook profile after the plaintiff’s public posts contradicted her claims. Although later federal decisions in New York narrowed the scope somewhat, limiting discovery to posts actually relevant to the claims at issue, the principle remains clear: if you put it online, it can end up in your case file.
The Role of Social Media in Divorce Proceedings and Custody Cases
Social media can be a double-edged sword in divorce and custody cases. On one hand, it offers a platform for support and connection. On the other hand, it can serve as a source of evidence that may be used against you in court. Posts, comments, and even private messages can be scrutinized and presented as evidence to challenge your claims or question your character. It is worth approaching social media with caution and strategic foresight.
It is also worth understanding the permanence of the internet. Despite privacy settings and deletion attempts, information online often leaves a digital footprint. Screenshots, cached pages, and even “deleted” posts can be recovered, subpoenaed, and used as evidence in legal proceedings. Think of everything you post, comment, or share as potentially being viewed by a judge, your soon-to-be ex-spouse, and perhaps even your children. This is not about paranoia. It is about being realistic about how courts handle electronic evidence.
Social Media and Child Custody
Child custody cases are often the most contentious aspect of divorce. By law, custody and visitation is determined based on the best interests of the child, and social media activity can provide a window into a parent’s character and behavior. No matter how innocuous it may have seemed initially, even one unbecoming post can impact your child custody case. Here is how your online actions can negatively impact your custody case:
Depicting Unstable or Inappropriate Behavior. Photos or videos of excessive alcohol consumption, drug use, or reckless behavior can paint a negative picture of your parenting abilities. Even seemingly harmless posts complaining about your ex-spouse or their family can be used to demonstrate a lack of respect and an inability to co-parent effectively. Public arguments or negative comments about your ex-spouse online can be particularly damaging, especially if children are exposed to them.
Violating Court Orders or Agreements. If a court order restricts your contact with your children or prohibits certain activities, violating those restrictions on social media can have serious consequences. For example, posting photos of your children when a court order prohibits it can be seen as a direct violation and could impact custody arrangements. We have seen cases in Suffolk County where a parent subject to supervised visitation posted photos of unsupervised outings with the child. That kind of evidence can result in a modification of custody or even contempt proceedings.
Exposing Children to Inappropriate Content. Sharing or liking inappropriate content, whether it be sexually suggestive material, violent imagery, or hate speech, can raise concerns about your judgment and the environment you are creating for your children. Even if your children do not directly see the content, the fact that you engage with it can be a red flag for a judge.
Creating a False Image. Ironically, trying too hard to portray a perfect life online can also backfire. Constantly posting pictures of lavish vacations or extravagant purchases while simultaneously claiming financial hardship in court can damage your credibility. Judges are savvy to curated online personas and will look beyond the surface to the underlying reality.
Financial Implications of Social Media in Divorce — From Assets to Alimony
Social media can also play a significant role in financial aspects of divorce, impacting property division, spousal support, and even child support calculations. Here are some ways your online activity can affect your financial outcome:
Hidden Assets. Bragging about a new purchase, a gambling win, or a secret investment on social media can expose assets you may have tried to hide from your spouse. Even seemingly innocuous posts can provide clues that lead to the discovery of hidden funds.
Inflated or Deflated Income. Your online presence can be used to verify your income and employment history. If you are claiming a lower income in court, but your social media posts suggest a more lavish lifestyle, it can raise questions about your honesty and impact support calculations. Conversely, if you are downplaying your success in an attempt to avoid paying support, your online activity could reveal the truth.
Luxury Items and Spending Habits. Pictures of expensive cars, jewelry, or frequent vacations can be used to demonstrate your spending habits and lifestyle. This can be relevant in determining spousal support, as courts often consider the standard of living enjoyed during the marriage. If you are claiming you cannot afford to pay support, but your social media feed is filled with images of luxury purchases, it will undermine your argument.
Business Ownership and Value. Social media can provide insights into the value of a business you own, which is a factor in equitable distribution. Posts about business deals, revenue, and expansion plans can be used to assess the true worth of the company.
Damaging Your Professional Reputation. Negative or unprofessional posts can damage your reputation, which can impact your earning potential and therefore affect spousal support calculations. Comments about your employer, colleagues, or clients can have serious repercussions.
Meet Our Team of Experienced New York Divorce Attorneys
Louis L. Sternberg, Esq.
Principal
Sara Carissimi, Esq.
Partner
Deborah Maniscalco
Paralegal
Nicole Berkman, Esq.
Of counsel
Ashley Pollak, Esq.
Of Counsel
Beyond Social Media: Text Messages, Dating Apps, and Other Digital Evidence
Social media is only one piece of a much larger picture. In practice, some of the most damaging evidence in divorce and custody cases comes from sources that have nothing to do with Facebook or Instagram.
Text messages and messaging apps. Text messages are routinely introduced in custody and family offense proceedings. Threatening texts, harassing messages, admissions of substance abuse, and evidence of a failure to comply with custody schedules are all fair game. iMessage, WhatsApp, Signal, and other platforms are all discoverable under CPLR Article 31.
Dating apps. Profiles on Tinder, Bumble, Hinge, and similar platforms can be relevant in custody cases and in disputes over the timeline of a new relationship. In some cases, dating app activity has been used to challenge claims of reconciliation or to demonstrate that a spouse was in a relationship before the marriage ended.
Venmo, Zelle, and payment apps. Payment app histories can reveal undisclosed income, hidden transfers, or spending that contradicts a party’s sworn financial disclosures. A pattern of large Venmo payments or CashApp transfers can raise questions that lead to further discovery.
GPS and location data. Location data from smartphones, photo metadata, and check-in histories can place a person at a specific location at a specific time. This can be relevant to claims of parenting time, alleged violations of orders of protection, or disputes over where a child is spending their time.
Email and cloud storage. Emails between spouses, between a spouse and a third party, or between a spouse and a financial advisor can all be discoverable. Cloud storage services like Google Drive, Dropbox, and iCloud may contain documents, photos, or records that are relevant to the case.
Spoliation: Why You Should Never Delete Posts During a Divorce
One of the worst mistakes a person can make during a divorce is deleting social media posts, text messages, or other digital evidence after litigation has begun. This is called spoliation of evidence, and New York courts take it seriously.
Once a divorce or custody action is filed, both parties have a duty to preserve evidence that may be relevant to the case. That includes social media posts, messages, photos, financial records, and any other electronically stored information. Deleting, altering, or destroying this evidence can result in serious consequences, including adverse inference instructions (where the judge tells the fact-finder to assume the deleted evidence was unfavorable), monetary sanctions, preclusion of certain defenses, or even contempt of court.
The instinct to clean up your online presence is understandable, but acting on that instinct after a case has been filed can make your situation significantly worse. If you are concerned about existing posts or messages, talk to your attorney before you do anything. There are ways to address problematic content without triggering spoliation issues.
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Protecting Yourself and Your Social Media in Divorce
The best way to protect yourself during a divorce is to significantly limit your social media activity. Consider the following steps:
Pause or Deactivate Your Accounts. The safest option is to temporarily deactivate your social media accounts until the divorce is finalized. This removes the temptation to post anything that could be used against you. Do not delete your accounts entirely, as that could raise spoliation concerns depending on the timing.
Review Your Privacy Settings. Ensure your privacy settings are as restrictive as possible. However, remember that even “private” posts can be shared or screenshotted by a mutual connection and forwarded to opposing counsel within minutes. Privacy settings are not a legal shield.
Think Before You Post. Before posting anything, ask yourself: “Could this be used against me in court?” If the answer is even remotely yes, do not post it.
Be Mindful of Comments and Likes. Even liking or commenting on someone else’s post can be problematic. Avoid engaging in any online discussions that could be construed as negative or controversial.
Do Not Discuss Your Divorce Online. Never discuss your divorce, your ex-spouse, or your legal proceedings on social media. This includes venting about your frustrations or sharing details about your case. This applies to private messages as well, which are discoverable.
Be Careful with New Relationships. If you are dating during your divorce, keep it off social media entirely. Posts about a new relationship can affect custody arguments, support calculations, and the overall tone of the litigation.
Monitor Your Children’s Activity. Be aware of what your children are posting online. Their posts can also be relevant to custody cases, especially if they reveal information about your parenting or home environment.
Consult with Your Attorney. Discuss your social media usage with your attorney. They can provide specific advice based on your individual circumstances. What is harmless in one case may be devastating in another.
Talk to a Suffolk County Divorce Lawyer About Your Case
Your online activity can have significant legal and financial consequences during a divorce. By understanding the potential risks and taking proactive steps to protect your privacy, you can minimize the negative impact of social media and digital evidence on your divorce proceedings. Remember, your digital footprint is permanent, and your online behavior matters. Do not let a careless post cost you your children, your assets, or your peace of mind. When in doubt, err on the side of caution.
The attorneys at the Law Office of Louis L. Sternberg, P.C. handle contested divorces, custody disputes, support matters, and family offense cases throughout Suffolk County and Nassau County. We understand how digital evidence is used in court, and we can help you protect yourself while building the strongest possible case.
Call us at 631-600-3295 or visit our free consultation page to schedule an appointment at our Hauppauge office.
Frequently Asked Questions
Can social media posts be used as evidence in a New York divorce?
Yes. Social media posts are admissible in New York divorce and custody proceedings as long as they are relevant to an issue in the case and can be properly authenticated. This includes posts on Facebook, Instagram, TikTok, X (formerly Twitter), LinkedIn, and any other platform.
Can my spouse subpoena my social media accounts?
Yes. Under CPLR Article 31, your spouse’s attorney can serve discovery demands requesting social media content. They can also subpoena records directly from the platform. Even content you have set to “private” or “friends only” can be obtained through proper legal channels.
Should I delete my social media during a divorce?
No. Deleting your accounts or individual posts after a case has been filed can constitute spoliation of evidence. If you are concerned about existing content, talk to your attorney before taking any action. Deactivating an account temporarily is generally safer than deleting it, but you should get legal advice first.
Can text messages be used in custody court in New York?
Yes. Text messages are regularly admitted as evidence in custody proceedings in both Suffolk County Family Court and Suffolk County Supreme Court. Messages showing threats, harassment, substance abuse, failure to follow custody schedules, or other relevant behavior are all admissible if properly authenticated.
What is spoliation and can I get in trouble for deleting posts?
Spoliation is the destruction or alteration of evidence that is relevant to pending or anticipated litigation. In New York, spoliation can result in adverse inference instructions, sanctions, preclusion of defenses, or contempt findings. If you are involved in a divorce or custody case, do not delete any digital content without first consulting your attorney.
Do dating app profiles matter in a divorce case?
They can. Dating app profiles and activity may be relevant to custody disputes, claims about the timeline of a new relationship, or arguments about a spouse’s lifestyle. If a dating profile contradicts claims made in court, it can affect your credibility.
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