5 Things That Can Be Used Against You In A Divorce — And How To Protect Yourself

No one expects their marriage to end in divorce. On your wedding day, attorneys, custody arrangements, and litigation are literally the last thing on anyone’s mind. But even though the divorce rate has decreased since its peak in the 1980s, it still happens. Around 39% of marriages end in divorce, according to current estimates.

Navigating a divorce can be emotionally overwhelming, especially if children are involved and the proceedings are contentious. Spouses are often blindsided by what is brought as evidence against them or when seemingly innocuous things from the past are used in evidence or secrets are unearthed in court.

It’s best to be prepared and know exactly what your soon-to-be-ex can use as evidence and what to do to avoid or counter that evidence causing your case to unravel at your feet. Working closely with an experienced divorce lawyer is always your best bet, but doing a little research of your own will never be the wrong decision.

So in the spirit of education here are five things your spouse can use as evidence against you in divorce proceedings.

1. Social Media Posts

Social media posts are similar to the Ghost of Christmas past — things you posted years ago and forgot about can be unearthed and see the light of day in the courtroom. According to Raiford Dalton Palmer, a Chicago-based divorce attorney and best-selling author of I Just Want This Done, there are a few types of social media posts that could elicit a negative response from the courts:

• Negative or disparaging remarks about the spouse or the spouse's family
• Posting photos or descriptions of expensive items or trips when asking the court to award them money based on claims of insufficient income
• Posting photos or descriptions of risky behavior, including but not limited to posts about drinking or drug use
• Posting inappropriate or risky photos or descriptions of the children

The first three are fairly self-explanatory, but the definition of inappropriate or risky posts about children isn’t as obvious. Any posts that provide location data or personal information can be used in court. For example, posting a first-day-of-school photo with the school tagged in the caption might be considered risky because the location of the children’s schools is now available to anyone who follows that school on social media.

Also, posts or photos that show children close to, observing, or participating in adult activities like parties or risky activities that one parent disapproves of can be a bad look in court.

How To Protect Yourself: According to Palmer, scrubbing your socials isn’t the way to go.

“Ethically, lawyers cannot advise clients to scrub any data whatsoever. Destruction of any records, whether they're financials, emails, or social media posts, that can be used in court can in and of itself be used against you,” he explained. It’s called spoliation of evidence, and it’s a big no-no. The destruction of evidence in a court case is against the law, and the rule can even be retroactive.

Some courts have ruled that spoliation of evidence is valid from the moment you think divorce might even be in the cards. So cleaning up social posts and then asking for a divorce is also not a surefire solution to having them admitted as evidence. You might avoid the photo of your kids riding in the bed of your truck showing up in court, but you might have created an even bigger problem for yourself if your spouse can prove the post was ever there in the first place.

The only way to prevent social media posts from being used against you in court is to be very careful about what you post in the first place.

2. Private Text Messages

As we all learned during the trainwreck Johnny Depp/Amber heard trial, text messages are admissible as evidence in divorce proceedings. But, according to Palmer, they have to meet certain thresholds to count. “It has to be relevant,” he explained. “Then he has to follow the rules of evidence. And the rules are fairly strict about what's admissible and what isn't.”

The messages need to be related to issues being discussed in the case. “For example, let's say there's a communication from one parent to their friend,” Palmer said. “A text message that says, ‘I was driving drunk with the kids in the car.’ Well, that's a text message that would be admissible and relevant as it’s something that's endangering children.”

Texts where one spouse is making disparaging comments about the other concerning things that are subjective most likely won't be admitted into evidence.

How to Protect Yourself: The rules surrounding spoliation of evidence also apply to text messages, so deleting them isn’t an option. Plus, they’ll likely still exist on the recipient's phone anyway. Like social posts, the only surefire way to avoid having negative text messages used against you in court is not to send them in the first place.

3. Hidden Assets

When divorce proceedings are filed, both spouses are required by law to disclose any and all assets. That includes bank accounts, investments, the items in your safety deposit box, your home, vehicles, and on and on. Transferring money from joint accounts to other, non-disclosed accounts is definitely something that the courts will find out about because there is always an electronic trail. In the case of cash, it’s a little more difficult, but not impossible, according to Palmer. The court might assume that cash is stashed somewhere if there are records of ATM withdrawals but no corresponding deposits or receipts. The same goes for paychecks that are cashed and never deposited.

Even money held in a bank account in only one spouse’s name or property that’s deeded to one spouse and not the other is considered marital property, so it’s not safe to assume that you don’t have to name it in your list of assets.

How to Protect Yourself: When it comes to marital property and assets, it’s best to be on the up and up with the courts. Be honest and name everything. Lawyers are good at following the paper trail, and there are special investigators employed by the courts to hunt down assets that have been moved or hidden. Any attempt to lie to the court about your assets will reflect poorly on your and will prove to be damaging to your case.

On the flip side, make sure you’re as familiar with all your spouse's sources of income as possible so you can spot any irregularities in what’s reported to the court.

4. Some Romantic Relationships

The no-fault divorce is becoming more and more common across the country. In a no-fault divorce, it doesn’t matter why the spouse asks for a divorce, only that both parties agree that they no longer want to be married. Palmer explained that even in the case of adultery, the courts might not care unless it can be proven that the spouse in question was spending marital assets on the affair. “The courts are not the morality police,” he said. “And with the introduction of the no-fault divorce, the impact has reduced across much of the United States.”

There is a caveat to that, however. Relationships, either during the marriage or during the separation leading up to the divorce, with someone who could be a danger to any children of the marriage can most definitely be used against you. For example, dating a person with a record of child abuse or violent crime could be used as leverage in a custody battle.

How to Protect Yourself: It’s best to wait until the divorce is final to begin any new romantic partnerships.

5. Extravagant Spending

Blowing huge amounts of cash during the separation, also called dissipation of assets or marital waste, will almost certainly be brought up in court. Extravagant spending of marital assets that would otherwise be split between the two spouses not only looks bad but could hurt your case when the court finds out. Even spending that may seem reasonable, like a vacation, can be presented as extravagant and a waste of marital property. Excessive money spent on business ventures, selling property below market value, spending money on romantic relationships, transferring funds or property to a third party, and spending money on illegal activities like gambling or drugs can qualify as marital waste.

How to Protect Yourself: Save any large purchases, trips, or business ventures until the divorce is final. Avoid doing anything financially that a judge could see as vindictive or pre-meditated to decrease your assets before a decision is reached.

Overall, Palmer says the most important thing to remember during a divorce is to be level-headed. “One of the big things to avoid is being a jerk. Being cool is really important and not being a jerk during the divorce case makes a big difference.” Remember that your divorce isn’t happening in a vacuum, and bad behavior, attempts at deceit, or letting your anger get the best of you will make an impression on the judge. To ensure the best outcome, just be cool.