Social Media in Divorce
Natalie Cimadevilla
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.
[iii]. Id.
[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-.
[vii]. Id.
[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).
[ix]. Id.
[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).
[xi]. Id.
[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).
[xiii]. Id.
[xiv]. Id.
[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.
[xvii]. Id.
[xviii]. Id.
[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.
[xxii]. Id.
[xxiii]. Id.
[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.
[xxxii]. Id.
[xxxiii]. Id.
