by: Deena L. Betze, Esq.
With the recent media storm surrounding the hacking of cheating website, Ashley Madison, and the release of thousands of e-mail addresses and information on users of that site, our attention is once again focused on the internet and how social media affects divorcing couples. Like it or not, social networking has become a daily part of our society. It seems we cannot go anywhere without someone tagging us in a post, tweeting about it, or “checking us in” on FaceBook or Instagram. I am old-school enough to still be shocked and somewhat appalled when someone tries to post my location while I’m out to dinner.
As attorneys, we have become painfully aware of the fact that once something is posted on a social network such as Facebook or Twitter, it cannot be permanently erased, even if deleted. Communications between attorney and client are confidential and should not be shared. Should a client reveal a confidential communication from their attorney on a social network, e-mail or other form of communication, that privilege would be lost.
It has become commonplace to post or tweet about every event, thought, feeling or mood change and it can be difficult to break those habits and walk away from the warm feeling of connectivity, even when failing to do so could be detrimental. Social media, in many cases, has replaced actual social interaction. Emotions run strong in divorce and family disputes. That is a time when people reach out to their social circle for support when they need it most. But doing so on line can have harmful results. While it is tempting to vent about one’s feelings, or post snarky memes or sayings about the opposite sex or relationships, I caution my clients never to do so. The same goes for posting pictures and updates about their new relationships.
This may sound like simple, common sense advice, but we are all probably guilty of sometimes posting updates without giving it a second thought. Not only are such posts permanently available for any crafty investigator or angry ex spouse/partner to dig up and use in court proceedings, but children, spouses/partners or others who may be hurt or misconstrue the posting can view them as well.
For years I have been warning my clients not to hit the “send” button on that late night text or e-mail to their former spouse or partner. Now I caution my clients to close down their FaceBook, Instagram and Twitter accounts during family court proceedings. Few actually follow this advice, and often it is just too tempting to post something related to their dispute or litigation that ultimately will be used against them. Divorced or separated parties should be cautious never to post comments about their divorce, their spouse, a new partner, or any aspect of the proceedings on social networks, as those comments cannot be kept private and could ultimately be used against them in the litigation. Lawyers need to take the same advice and refrain from posting about specific cases, parties or adversaries on line, as that can be a serious breach of ethics. I recommend that parties simply not utilize social networks or even e-mail to share any details of their marital situation or divorce proceedings, especially those details that they would not want a judge, their ex, or their children, to see.