Since social media has gained popularity, keeping a low profile during any change in relationship status, especially a divorce is more complicated. A person's Facebook relationship status can turn into celebrity-like gossip just by a simple change of marital status or removal of "couples" photos. And deletions of an entire profile or account? Some people view those actions as sure red flags that perhaps the honeymoon is over.
Nosey friends who are snooping to get the latest gossip aren't the only concern divorcees have to worry about in these modern times. Social media slamming and even the distribution of intimate photos and videos have been evil tools ex-spouses have used to seek revenge. But revenge seekers beware...
In the state of California where I practice, Family Law Courts are not treading lightly on evidence such as text messages, screen shots of Facebook pages, and especially the distribution of intimate photos of videos of the couple. In January, the "Revenge Porn" law, which falls under the California penal code 647 (J), was amended in California to include that prosecutors no longer have to prove intent when pursuing against the unlawful distribution of intimate images. This is great news for the spouse worried about the archives stored in a once-shared computer hard drive, but the questions most divorcees want to know are:
I want to own all the images and videos. Aren't they technically mine, since I'm in them?
Here's the truth: At least in the state of California, there is no specific code or case law that presently speaks on the property rights of photographs or videos. In fact, currently, photos and videos, regardless of how risqué the content, are handled no differently then when parties are dividing up photos and videos of their children. Typically, the person who has possession of the photos and videos ends up as the rightful owner after the divorce. In some cases the person who has possession of the archives will be asked for duplications, which can be at the financial responsibility of the other party. The California family code has no provision mandating that a court order of intimate photos be turned over to other party. If it gives you piece of mind to have copies of the images, then it is doable, but to seek sole ownership would be at the discretion of the court to award it.
What if I seek and destroy the 'evidence' prior to filing for divorce?
Don't do it! Photos and videos are treated as "property" in a divorce case, so intentional removal, destruction or manipulation of any and all property is a violation. As embarrassing as the topic may be, your best protection is to talk with your lawyer about the photos and videos, and elaborate on any concerns or intent involving your ex-spouse. The more information your lawyer knows, the better he/ she can be equipped to create a plan to make sure your emotional distress doesn't escalate during the divorce process.
Speaking of "property," does this mean that I have partial ownership over my spouse's social media accounts? What rights do I have if I want my soon-to-be ex to remove photos of our children and myself?
Currently there is no code or case law that mandates ownership or property of social media accounts, and the family courts have limited discretion when parties disagree about the type of content one party is posting on social media. Generally speaking, it's best for both parties to keep their profiles "private" and adhere to the many guidelines and tips on how to keep your children safe on social media. The Family Court would only be concerned if the photos posted to an account were detrimental to the health and safety of the child otherwise, freedom of speech rules.
Finally, I heard my ex is slamming me on his Facebook account, calling me names and airing our dirty laundry as his status posts. I don't have access because his account is "private" and we are no longer "friends," but mutual friends have sent me screen shots of his posts. Can he do that?
Typically a family court will not issue an order for removal of the social slamming; however, the family court will take into consideration any and all copies of text messages, Facebook screenshots, tweets and the like when evaluating child custody requests. So while the court can't tell you what not to post, I strongly advise to play nicely because any information leaked can be used against you.
Even if children are not in the picture, the fact is any type of intent of emotional distress or harassment will be considered during a divorce process. Berating or speaking negatively about your soon-to-be ex--whether it is in person, online or via phone or text message--is still considered evidence. And how you react is also duly noted. My advice for all clients when a new emotional stone is turned is to walk away, call your lawyer, then react together. This allows for the best, legally sound outcome in your favor.
Don Schweitzer is founder and partner of The Law Offices of Donald P. Schweitzer, based in Pasadena, Calif. As a Certified Family Law Specialist and former District Attorney, he has extensive background in domestic violence, divorce and child custody issues. Prior to becoming an attorney, Mr. Schweitzer was a Police Officer for approximately 10 years. As a faculty instructor at the National Business Institute, Schweitzer teaches continuing legal education classes on the topic of ethics and advanced courses on family law. He is an active member of the Pasadena Bar Association, the Los Angeles County Bar Association, American Bar Association, and the California State Bar; and a recent contributor to Los Angeles Lawyer.