he increase of the different forms of digital devices available has led people to digitally store their assets.[i] Almost ninety percent of the global population owns more than one digital device.[ii] Of those who own at least one digital device, sixty two percent own three or more devices, and twenty percent own five or more devices.[iii] On a global scale, individuals have an average of over thirty five thousand dollars worth of assets stored on a digital platform.[iv] Digital assets are intangible property and may take different forms, such as music libraries, eBooks, social media accounts, and blogs. Ways individuals turn digital accounts into digital assets are through digitally storing: Personal memories, entertainment files, career records, personal files, and even hobbies or projects.[v]
The American Academy of Matrimonial Lawyers reported that eighty one percent of divorce attorneys agree that social media has an increasingly significant role during divorces in recent years.[vi] Sixty six percent of those lawyers report that Facebook is their primary source of evidence during divorce proceedings.[vii] Social media platforms provide evidentiary support for a range of familial court proceedings; for example, they may often contain material evidence proving an affair or implicating a parent as unfit to be a child’s custodian.[viii] Social media has become an acceptable standard to confirm one’s lifestyle.[ix] In context, an ex-spouse may claim a high amount of financial need but his Facebook profile might prove otherwise—whether by a post or photo exhibiting that he is living lavishly or unnecessarily beyond his means.[x] Similarly, angry posts may also prove that individual is unable to provide a healthy or stable environment for a child in a custody case.[xi] With people posting scandalous and private content onto their social networking sites, these social media platforms function like an open book of people’s lives.
The result of a divorce settlement relies on each state’s laws and whether the state follows: (1) equitable distribution or (2) community property.[xii] Spouses are considered to equally own all wealth owned or gained by either one of them during the marriage in states that adhere to community property laws.[xiii] Accordingly, any property that is acquired during the marriage, regardless as to who purchased it, is deemed equally owned by both parties.[xiv] Most states, including Florida, follow equitable distribution laws.[xv] In those states that follow equitable distribution laws, any property that is obtained during the marriage is to be divided equitably, which translates to fairly.[xvi] In the event of a divorce in equitable distribution states, property is divided between the spouses in “a fair and equitable manner.”[xvii] The courts in equitable distribution states consider several factors when deciding which or how much property should go to whom during a divorce proceeding.[xviii]
During an equitable distribution, the court must identify all marital assets.[xix] A marital asset is any property acquired during a marriage, irrespective as to which spouse holds ownership or title.[xx] Therefore, if a social media account is opened during a marriage, it is considered a marital asset.[xxi] Social media accounts and their content are considered property to be subject to equitable distribution during a divorce proceeding.[xxii] Similarly, any new content or photos that are added to a pre-existing social media account may also be considered marital property.[xxiii]
Decisions regarding how to divide the marital property are made during divorce proceedings. Traditionally, most decisions regarding the division of marital assets have included matters such as the residences, vehicles, and photographs.[xxiv] Recently, intangible digital assets such as an iTunes music library, a Kindle eBooks library, social media accounts, and blogs are subject to division as well.[xxv] Social media accounts are filled with digitally stored content that may be categorized as intangible property but may easily become tangible property.[xxvi] For example, photographs on a social media account are intangible up until the moment they are printed.[xxvii] Hence, if one spouse managed all of the social media accounts during the divorce, they may easily print copies of the photographs—but they may also withhold them on a digital account that only they have the password to.[xxviii] As a result of a lack of case law on this subject, digital assets raise the legal question of how they may be properly valued and divided.[xxix]
This dilemma may seem parallel to the issue of dividing a car, since neither a car nor a digital asset may be split in half. However, unlike an automobile, digital assets are typically not subject to a transfer of title. For example, Facebook, YouTube, Twitter, and iCloud all have some sort of terms and conditions contract that includes a clauses in which the user acknowledges his or her account as non-transferable and non-assignable and that the account information is not to be shared.[xxx] Furthermore, the average person has over seventeen thousand dollars worth of personal memories stored in digital format.[xxxi] Therefore, divorce proceedings between spouses in situations whom share a joint social media account might be emotionally exhausting if the social media platform is the only location where family photographs or videos are stored.
However, it is worth noting that just as social media may be an asset in and of itself, it may also provide evidence that an unknown asset exists. It is important that social media is monitored during divorce proceedings because just as these accounts may reveal a spouse’s misconduct, they may also conceal hidden assets that are subject to marital property.[xxxii] This sort of evidence is not limited to what the ex-spouse posts, but may also include posts by that spouse’s friend or new lover.[xxxiii] Therefore, keep your loved ones close but your—and your spouse’s—social media accounts closer.
[i]. Sarah Peterson, 15 Inspiring Entrepreneurs Who Built Careers Around Their Passions Through Social Media, Buffer: Blog (Apr. 22, 2015), https://blog.bufferapp.com/earn-income-social-media.
[ii]. Robert Siciliano, How Do Your Digital Assets Compare?, McAfee: Blogs (May 14, 2013), https://blogs.mcafee.com/consumer/digital-assets.
[iv]. Id. ($17,065 from personal memories, $6400 from personal records, $4381 from career information, $4418 from hobbies and projects, $2147 from personal communications, and $1721 from entertainment files).
[v]. Siciliano, supra note 2; see also What Happens to Your Digital Assets and Social Media Accounts When You Die?, Charlie Patchen & Murphey, LLP (Mar. 31, 2015), http://www.cpmlaw.com/NewsDetail/2015-SPRING-WHAT-HAPPENS-TO-YOUR-DIGITAL-ASSETS-AND-SOCIAL-MEDIA-ACCOUNTS-WHEN-YOU-DIE.
[vi]. Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers, Am. Acad. Matrim. Law. (Feb. 10, 2010), http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey-.
[viii]. Social Media and Divorce, Charles R. Ullman & Associates, http://www.charlesullman.com/legal-services/divorce-lawyer/social-media-electronic-evidence/ (last updated Dec. 16, 2014).
[x]. Social Media Can Have Huge Effects During High-Asset Illinois Divorces, Bradley R. Tengler, Inc., http://www.tenglerlaw.com/Articles/Social-media-can-have-huge-effects-during-high-asset-Illinois-divorces.shtml (last visited Apr. 6, 2017).
[xii]. Comparing Equitable Distribution and Community Property for a Divorce, LegalZoom, https://www.legalzoom.com/knowledge/divorce/topic/equitable-distribution-community-property (last visited Apr. 6, 2017).
[xv]. Fla. Stat. § 61.075 (2014); Comparing Equitable Distribution and Community Property for a Divorce, supra note 12.
[xvi]. Comparing Equitable Distribution and Community Property for a Divorce, supra note 12.
[xix]. Equitable Division of Property Law & Legal Definition, USLegal, http://definitions.uslegal.com/e/equitable-division-of-property/ (last visited Apr. 6, 2017).
[xx]. Marital Assets Law & Legal Definition, USLegal, http://definitions.uslegal.com/m/marital-assets/ (last visited Apr. 6, 2017).
[xxi]. Brette Sember, Why You Need a Social Media Clause in Your Divorce, Huffington Post (Feb. 26, 2015, 10:18 AM), http://www.huffingtonpost.com/brette-sember/why-you-need-a-social-media-clause-in-your-divorce_b_6738224.html.
[xxiv]. Id.; see also Valerie Stevens, Tangible Property in Divorce, LegalZoom, http://info.legalzoom.com/tangible-property-divorce-21184.html (last visited Apr. 6, 2017).
[xxv]. Rosanne M. Beach, How Do Digital Assets Get Divided in a Divorce?, LexisNexis: lextalk (Sept. 2014), http://www.lexisnexis.com/lextalk/practice-insights/f/13/t/982.aspx.
[xxvi]. See John Romano, A Working Definition of Digital Assets, Digital Beyond (Sept. 1, 2011), http://www.thedigitalbeyond.com/2011/09/a-working-definition-of-digital-assets/.
[xxvii]. See id.
[xxviii]. See id.
[xxix]. Beach, supra note 25.
[xxx]. iCloud Terms and Conditions, Apple, https://www.apple.com/legal/internet-services/icloud/en/terms.html (last updated Mar. 1, 2017); Statements of Rights and Responsibilities, Facebook, https://www.facebook.com/legal/terms (last updated Jan. 30, 2015); Terms of Service, YouTube (June 9, 2010), https://www.youtube.com/static?template=terms.; Twitter Terms of Service, Twitter (Sept. 30, 2016), https://twitter.com/tos?lang=en.
[xxxi]. Siciliano, supra note 2.