Information Overload in Family Practice: Problematic and Getting Worse
Once upon a time, when a divorce loomed, the means of obtaining proof a spouse was cheating were limited. A suspicious wife or husband could hire…
November 22, 2019 at 03:04 PM
5 minute read
Once upon a time, when a divorce loomed, the means of obtaining proof a spouse was cheating were limited. A suspicious wife or husband could hire a private detective to follow the possibly errant spouse around and hope to capture incriminating photographs. Or perhaps a spouse might stumble upon receipts for mysterious purchases at Tiffany's or Victoria's Secret hidden in a desk drawer.
How times have changed! Now, when a family lawyer begins to access the massive amounts of information potentially relevant to a divorce available through technology and social media — emails, texts, blogs and postings on Facebook, Instagram and other sites — she may feel like a climber on Mount Everest who's just been overcome by an avalanche. Communications which were never intended to express more than a momentary flash of emotion are now preserved in everlasting concrete on the internet. This mountain of information can be both a gold mine and a land mine for family lawyers and their clients.
It is a gold mine because people are often surprisingly open and incautious in their social media interactions. Lengthy and sometimes scandalous communications between a spouse and a lover may be easily accessed. Look, for instance, at the embarrassment for both parties in the Jeff Bezos divorce when Bezos' "sexting" with his paramour was exposed for all the world to read and see. As another tech leader commented, "If the man who wants to put listening devices in everyone's home doesn't know everyone's always watching, I don't know who will."
Comments on social media may also plainly reveal mental and emotional abuse perpetrated by one spouse against another, and may even acknowledge or threaten physical abuse. Mean-spirited posts tend to alienate judges and juries and can also support the claims of an abused spouse. The publication of intimate photos by one party to embarrass and shame the other, commonly known as "revenge porn," may even be a criminal act — which will also serve to alienate a judge or jury.
We now have a case in which a Congresswoman in the process of divorcing her husband was actually forced to resign from Congress because of nude photos of her released online by her soon-to-be ex that exposed a questionable relationship with a campaign aide. We aren't all public figures in the limelight, but we all should recognize compromising photos can end up on the internet and will be there forever, available to be weaponized.
What if a family lawyer is representing the spouse who unleashed the ugly tweets or texts (or revenge porn), or indulged in unguarded exchanges with a lover? Then discovery becomes a land mine indeed, which must be dealt with in the course of working for the client.
In many cases, the amount of information potentially available through discovery is so extensive that the process of discovery alone, if uncontrolled, could bankrupt a client. Information may be so extensive an outside firm must be hired just to gather, organize and review the accumulation of material and attempt to separate the wheat from the chaff. The amount of time it takes to follow disjointed posts, emails and texts is never easy to estimate when you begin.
Where do you draw the line between what might be considered relevant to a divorce and what can safely be put aside — and at what cost to the client? The attorney's job is to inform the client so the client can decide.
Attorneys may agree, for instance, to set a time limit and omit any social media postings that occurred before a certain date, or to confine discovery to certain categories of information or to interactions between a limited number of parties, so an email, for instance, to arrange a lunch with one's grandmother need not be included. The artistry of determining what goes in and what stays out will play a critical role in many divorce proceedings. When you have the key to Pandora's Box, be wary before using it.
In some cases, it may even be possible to force an opponent in a divorce to cover the costs of some of the necessary discovery. In any case, this will be a continuing major issue in modern-day divorce.
Young people just beginning their careers these days are frequently advised not to post any comments or photos of themselves online may exhibit poor judgment to a future employer. How much more so should anyone contemplating the possibility of divorce avoid postings on any social media platform that are angry, abusive and childish, or reveal an illicit relationship.
An old-fashioned piece of advice is, "Don't post, tweet, email or text anything you would not want a beloved grandmother to see." Emotional as divorce may be, this is not the time for anyone to unleash his or her id on social media or emails or texts. In fact, many attorneys advise clients contemplating divorce to simply stay off of social media completely during the entire process.
Susan Myres is a board-certified family law attorney who has been practicing in Houston for over 35 years. She has served in leadership positions locally, statewide and nationally, and is currently president of the American Academy of Matrimonial Lawyers (AAML).
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