Submitted by Attorney Douglas C. Gardner

When involved in litigation, or even when there is the prospect of litigation, parties should be aware of certain aspects of Facebook, that they may not have ever considered before.

Two competing concepts need to be discussed, and the differences understood.  First, it is beneficial to parties likely to be involved in litigation to not create evidence that may be used against them, and this includes posting to Facebook.  We have all heard many times (hopefully only on T.V.) that we “have the right to remain silent, and that anything we say may be used against us in a court of law.”  Similarly, though not specifically stated when read our Miranda rights, you have the right to not post on Facebook anything that may be incriminating. 

Obviously inappropriate Facebook posts may include any indiscretions, adulterous situations, use of illegal drugs, abuse of alcohol, abuse of the children, etc.  However, even a seemingly harmless post that “I am in Colorado visiting Aunt Jane” may be used as evidence in a contempt case for leaving the state with the children during the pendency of a divorce case.  Be careful what you post.  If you have any hint that you may be involved in a divorce case in the near or even far future, remember that you have the right to remain silent on Facebook also. 

Once a divorce or other family law case has been filed, you cannot now simply close out your Facebook account.  Destroying, hiding, or otherwise disposing of evidence can be a serious crime and result in serious sanctions in your case.  This is often referred to as “spoliation of evidence.”  Once a case has been filed, it is too late to remove problematic posts.  Furthermore, Facebook does not delete your account when you ask to close out your account, as all of your entire Facebook file remains in the computers, and can be subpoenaed if and when needed. 

Even if you are not anticipating a divorce or legal battle, you should always monitor and pay attention to your security settings, limiting who has access to your profile on Facebook. 

If you are involved in a divorce case involving simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at