• Brendan

Dr. Frankenstein's Monster: Social Media and Divorce

I learned a new word recently. Nomophobia. Nomophobia is “the irrational fear of being without your mobile phone or being unable to use your phone for some reason, such as the absence of a signal or running out of minutes or battery power.” You may suffer from some degree of Nomophobia yourself. I know I do from time to time. Sadly, many of us have become conditioned to the need for constant connection, however attenuated. Our lives have been (are?) consumed by technological penetration. The proliferation of smartphones, laptops, and new types of social media feed this cycle. It can be vicious. For all of the benefits of Moore’s Law, it is making us profoundly more anxious. But I digress. This post is not about the deleterious psychological impacts of social media (or maybe it is…that’s way too meta for me right now). I’ll leave that one to Brendan—maybe just prior to or following one of his notorious breaks from the online world…

What this post is about (or what I agreed to write about) is the intersection of our physical lives and our online lives (through forms of social media) and the divorce/custody process as we practice it. The overlap of the two separate circles of the Venn-diagram during a divorce can be a minefield. But that doesn’t mean it can’t be navigated.

We necessarily caution our clients—who are in the midst of divorce or in some family dispute—that they are under the microscopic eye of the court. We tell them that their behaviors and choices can and will be scrutinized—and too frequently without regard to context; that despite their best intentions, the opposing party (and that opposing party’s attorney) will likely attempt to exploit the various decisions they’ve made and actions they’ve taken, to the extent that it may serve that party’s own position or may work some advantage during the process. In short, we tell them to proceed with utmost caution in how they behave and how they interact with others—in both what they say and what they do.

What is not immediately obvious to most clients (and many experienced practitioners) is how the use of social media may impact their cases. As professor Daniel J. Solove stated succinctly in his book The Future of Reputation: Gossip, Rumor and Privacy on the Internet:

Increasingly, people are exposing personal information about themselves and others online. We can now readily capture information and images wherever we go, and we can then share them with the world at the click of a mouse. Somebody you’ve never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet. Your friends or coworkers might be posting rumors about you on their blogs. The personal email you send to others can readily be forwarded along throughout cyberspace, to be mocked and laughed at far and wide. And your children might be posting intimate information about themselves on the Web—or their friends or enemies might be revealing your family secrets. These fragments of information won’t fade away with time, and they can readily be located by any curious individual.

Yale University Press, New Haven London, 2007, page 2.

Social media is highly accessible, providing people with the ability to communicate in immediate, efficient and powerful ways. It is a terrific way for people to keep in touch with others and organizations they associate with or may be interested in learning about. Information and contacts are centrally located, and a site’s functionality provides users with the ability to keep current on just about everything. It’s easy and the interaction it provides is nearly instantaneous. But because social media (let’s use Facebook—as it is the most ubiquitous) is so easy to use, so fluid and so unimpeded, people rarely stop and think about how what they are posting (and, more troubling, what others are posting about them without their consent and frequently, their knowledge) can be used against them, whether in court, or in the negotiations of a divorce proceeding.

Consider the following example:

A husband (37) and wife (35) are engaged in a contentious divorce proceeding. They have two children, ages (5) and (3), whose sole custody they are each fighting for. The wife goes out one evening with some friends, and winds up at a restaurant and bar. She has one cocktail, enjoys the company of her friends, and as the night goes on, friends of friends show up, the music gets louder, and one of those other friends leans close to ask the wife how she knows the other people in the group. At that very instant (11:14 p.m.), a group member takes a photo of the wife, face-to-face with this stranger (no more than 2 inches apart) and immediately uploads it through his cell phone, to his Facebook page. At 11:16 p.m., someone else, at home, at a computer, views the picture, tags the photo, and (with a click of a button) has alerted all of the wife’s Facebook contacts (including her husband) that a new photo has been posted. At 11:19 p.m., the husband views the photo of his wife, at a bar, holding a drink just five minutes earlier, at 11:14 p.m. — engaged in what appears to be an intimate moment with a man he has never seen before. At 11:22 p.m., the husband emails his attorney with a copy of the photo of his wife and demands that she be restricted from access to their children because she is out of control and partying with strange men. At 9:05 a.m. the following Monday morning, husband’s attorney files a petition to restrict the wife’s access to the parties’ children—and uses that photo in support of his basis for doing so.

Or another example:

After a particularly acrimonious court appearance, at which he is denied certain relief he was seeking from the Court, the husband goes into the hallway, and posts the following message as his Facebook status: “I hate her. I will do everything necessary to ensure she’ll lose the kids. She will never see them again.” Minutes later, a friend of the wife, who until that time remained neutral in the parties’ divorce, reads the message, takes a screenshot from her smartphone, and sends it to the wife. Outraged, the wife sends it to her attorney, who returns to Court the following morning seeking an Emergency Order of Protection—relying on the husband’s message as a primary basis for doing so.

The ability to expose personal information on the Internet is immediate and is often beyond the control of the person who would otherwise keep the information private. Photographs can be posted without the individual’s consent and often without their knowledge. Facts and circumstances, which may otherwise be innocuous, may be distorted and exploited for gain by the other party. And, the information will be presented to a judge who may have limited (very limited? no?) familiarity with social media in any form whatsoever and have no functional understanding of a platform.

Additionally, because social media is so frictionless and feels so ephemeral, it is easy for people to forget that it is a treasure trove of easily accessible and easily mined information. Without having to resort to even the most basic formal discovery devices (e.g., Notices to Produce Documents, Subpoenas, etc.), social media can provide lawyers or opposing litigants with an equally (or maybe even more) substantial source of information—and do so far more expediently. And, even though some may attempt to delete a particular item (which shouldn’t be done given a concept called spoliation of evidence) that does not mean that it has disappeared from bounds of the internet (google “Wayback Machine”). I am going to avoid the technical aspects of these issues in this post, and strategies to employ and/or avoid, but just know that these issues can take on their own lives. Some can turn into Dr. Frankenstein’s monster.

So, let me close this first guest post with this: while the benefits of Facebook and other social media sites are vast, and their usefulness immense, the potential negative consequences can be equally extensive. This is not an argument to delete your social media accounts and go hide in a cave. Few want to go back entirely to a time entirely devoid of social media. It is merely a reminder of the law of unintended consequences. No one (ok, maybe there are some deranged psychopaths out there) sets up a social media account with the thought that they need to consider a potential divorce or custody battle. Post as you deem appropriate; but know that you may be called upon to defend, explain or contextualize those posts. Not any different from the guidance we’d suggest in your physical lives. Proceed with caution.

Author's Note: I am writing this from my laptop at a neighborhood coffee shop, using a remote wi-fi hotspot, listening to a curated list of Amazon Music’s 100 Greatest ‘80s Songs. Technological advancement has provided us conveniences that could only be imagined by science fiction writers in past decades. I’ve checked Twitter (refreshed innumerable times), Facebook and Instagram. I think I may have a problem. Send help!

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