Frequently Asked Questions About Social Media and Divorce in South Dakota

Can my spouse use my private Facebook posts in our South Dakota divorce?

Yes. "Private" posts are not legally privileged and are subject to discovery in South Dakota divorce cases. If your spouse's attorney requests your social media content through proper discovery channels under South Dakota Codified Laws § 15-6-26, you must provide it regardless of your privacy settings. Privacy settings don't create legal protection under South Dakota law—they just control who sees your posts socially. South Dakota courts routinely order production of all social media content, public and private.

Can my spouse's lawyer subpoena Facebook directly for my posts in South Dakota?

In limited circumstances, yes. While it's more common for attorneys to request social media content directly from you through South Dakota discovery procedures, attorneys can issue subpoenas to social media companies for account information, posts, and messages. However, platforms typically require a court order beyond just a subpoena, and there are procedural hurdles. Most social media evidence in South Dakota divorces comes from formal discovery directed at the parties, informal searches of public content, or third parties providing screenshots.

What if I delete posts before my South Dakota divorce—can they still be found?

Possibly. Even deleted content may be recoverable through the social media platform's servers, especially if deleted recently. Additionally, friends may have screenshots, and the Internet Archive may have captured public posts. More importantly, deleting content after your South Dakota divorce begins can constitute spoliation of evidence, which can result in sanctions under South Dakota law including adverse inferences (the court assuming the deleted content was harmful to your case), monetary penalties, and severely damaged credibility with the judge.

Are my private messages and DMs discoverable in South Dakota divorce?

Yes, in many cases. Private messages, direct messages, and other non-public communications can be subject to discovery if they're relevant to your South Dakota divorce case. This includes Facebook Messenger, Instagram DMs, Twitter/X direct messages, Snapchat messages, and messages on dating apps. South Dakota courts have broad discretion to order production of relevant communications under South Dakota Codified Laws § 15-6-26. If you're messaging about your divorce, finances, children, or dating, those messages are likely discoverable.

Can I post photos of my children during my South Dakota divorce?

Legally, there's no South Dakota statute that prohibits it, but it's generally not advisable. Many South Dakota parenting plans include provisions requiring both parents' consent before posting children's photos online. Even without such a provision, posting photos of your children during divorce can create conflicts with your co-parent, may be viewed negatively by the South Dakota court if done excessively or inappropriately, and raises privacy concerns for your children. Best practice: get the other parent's permission first, or wait until after the divorce is final to resume posting photos of your children.

What should I do if my spouse is posting lies about me on social media during our South Dakota divorce?

First, don't engage or respond on social media—that only escalates the situation and creates more evidence. Instead: document everything with screenshots (including timestamps), keep organized records, discuss with your South Dakota divorce attorney who can address it through legal channels, and consider whether it rises to the level of defamation or harassment. In extreme cases, posting false allegations could constitute contempt of court if it violates temporary orders, defamation, or harassment, and may support a request for a civil protection order in South Dakota. Your attorney can determine the best strategic response.

How does adultery evidence from social media affect my South Dakota divorce?

In South Dakota, adultery is a recognized fault ground under S.D. Codified Laws § 25-4-2. Social media evidence of dating or romantic relationships during your marriage (before your divorce is final) can directly affect property division and spousal support awards. Dating app profiles, photos with romantic partners, check-ins at hotels or romantic locations, and messages with new partners can all constitute evidence of adultery in South Dakota. Even in cases proceeding on no-fault grounds, this evidence affects custody decisions and your credibility with the court.

Can my employer see my social media posts during my South Dakota divorce?

Yes, potentially. If your posts are public or semi-public, employers can find them through searches. Additionally, if your South Dakota divorce involves issues of income or employment (common in spousal support cases), your spouse's attorney may subpoena employment records and your employer may become aware of your divorce through other channels. Keep your social media professional and appropriate—not just for your South Dakota divorce case but for your employment. Many employers monitor employees' social media, and inappropriate posts can lead to employment consequences independent of your divorce.

Is it okay to post about my South Dakota divorce if I don't mention my spouse by name?

No. Even without naming your spouse, posts about your South Dakota divorce are still problematic. Vague-posting or subtweets about "some people" or "my situation" can still be identified as being about your spouse through context, used as evidence of your state of mind or credibility, viewed negatively by the South Dakota court as airing private matters publicly, and used to show poor judgment or inability to keep personal matters private. Additionally, your friends and followers will know what you're talking about, which can create social complications. Best practice: don't post about your South Dakota divorce at all.

Can I use my spouse's social media posts as evidence in our South Dakota custody case?

Yes, if the posts are relevant to custody issues. Social media evidence showing poor parenting, substance abuse, unsafe environments for children, parental alienation, dishonesty, or other factors relevant to the best interests of the child can be used in South Dakota custody cases under S.D. Codified Laws § 25-4-45.3. However, you must obtain the evidence legally (through formal discovery under South Dakota Codified Laws § 15-6-26, from public posts, or from third parties who voluntarily provide it—not through hacking or unauthorized access). Work with your South Dakota attorney to properly authenticate and introduce social media evidence at trial under South Dakota Codified Laws § 19-19-901.