Divorce in Pennsylvania Think before you Tweet

Tweeting about your divorce or using other social media may seem an innocent way to blow off steam from heavy emotions.

“I just had a fight wid my husband. So i thought of starting a blog about my life and how miserable i am when im wid him” tweeted Depressed Housewife @HusbandHater in April, 2009.

Here’s another: “At the Altar: Husband: and even though I don’t like what a feelin- Me: This is over. You are a disgrace. I hate you & im keeping the dog,” tweeted #1Dday2016@NoControlProjec earlier this month.

Guess what: those tweets aren’t going ANYWHERE and they can be used against you in court!

Social media discovery requests by divorce lawyers are a new trend over the past 10 years. True, most tweets are about as substantive as a meringue pie. Yet social media accounts – Twitter, Facebook, Instagram and the like – can occasionally contain evidence of a bias, a premeditated plan, a betrayal or affair, or even a criminal act. While the law has scrambled to keep up with the rapidly changing social media landscape, lawyers also are learning how to use such accounts as evidence to support a case.

In Pennsylvania, the most common rule regarding social media discovery in civil litigation is what is known as the “factual predicate” standard, in which a party may only access private portions of another’s media account if they can convince the court that publicly available portions of the site are relevant. Further, this is the ONLY part of discovery requests in Pennsylvania that currently require this threshold proof of relevancy. If your lawyer requests financial statements or a private letter from the spouse you are divorcing, they need not prove that the ensuing revelation of private documents is necessary. But they do have to prove it if they want your Facebook account.

As people become more aware of privacy settings on their social media accounts, the pool of evidence a tweet or post might contain will likely shrink back into an area protected by privacy laws. However, a Pew research study from 2015 concluded that two-thirds of adults are active on social networking websites. That means it is likely that at least one of two divorcing spouses is posting and tweeting away, never thinking about who can read it, for how long, and how it might be used against them.

Are you sure that what you are writing will not come back to bite you somehow? Better safe than sorry. Right now the Pennsylvania Bar Association advises that a “competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute.” As you are also allowed to change your privacy settings after the onset of a case in Pennsylvania, the dichotomy is that opposing lawyers might only obtain the proof they need from a social media account if the other attorney forgot to advise clients to privatize their social account settings. That’s a pretty iffy situation.

For now, the safest course might be “Less is more.” Speak more, tweet or post less – and tighten up those security settings!