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“Status Update -my Facebook just ended up as evidence in my divorce!”

June 13, 2016

technology and divorce

When the very first internet message was sent 46 years ago, who could have envisaged the effect on divorces into the future. The Ashley Madison hack last year brought into stark light what research has been pointing out for a while – the impact of technology on relationships and its use in divorce proceedings. I am picking there are very few family lawyers, if any, who haven’t seen in their meeting rooms the fallout from the Ashley Madison hack or some other separation that resulted from a straying partner being found out through emails, text messages, social media posts or internet history searches. Such is the prevalence of internet communication in the stories family lawyers hear, we may find it hard to believe the first ever internet message was “login”, not “what are you wearing?”.

The internet has become a tool in the family lawyer’s toolbox. Increasingly, family lawyers have an arsenal of evidence at their disposal in the form of emails, text messages and social media posts written by the other party in litigation proceedings. So, what is important to remember about technology if you are in the midst of a separation or family law dispute?

Just how do you make that “relationship status update” – No longer is the carefully crafted, public ‘separation statement’ the sole domain of celebrities. I’ve mediated or been involved in a few separations where the couple have given consideration to how they announce their separation to the online world. This avoids one party being caught by surprise when they start receiving a barrage of comments and texts after their ex announces to the world his or her slant on their separation story or simply changes his or her “relationship status”.

Getting on the same page about how and when you will tell your online community that you are separating allows you both to control your privacy, gives you an opportunity to first tell close family and friends, allows you to prepare (emotionally and practically) for the inevitable comments and messages in response and sets a tone for your separation moving forward.

A report from the US indicates that separating couples there are going even further and entering agreements about what images and information can be shared digitally post separation. One can foresee this happening here, particularly around the issue of images of a separating couple’s children being shared online.

To remain friends or not – Similarly, some couples I’ve worked with have reached understandings about their future online relationship – to remain online “friends” or not? Again, this has the advantage of presenting to your online community the new relationship you share (or don’t) with one another, allows you to avoid hurt feelings and the fallout of these and to be mindful of just who will be reading your online posts.

You can run but you cannot hide – gone are the days where you may have been able to delay proceedings by avoiding service. Social Media and the internet is regularly used to track down contact details and information about a person who is proving difficult to serve with proceedings. There are now also cases where the Court has directed a party may be served through their Facebook or social media account.

Don’t vent and type – the angry text or email you just sent may well end up attached to an affidavit for the Family Court. Texts and emails with your ex partner are the next best thing to inviting a Judge to have a front row seat to your argument.

The only way to avoid this is to think carefully each time you text, email or message online. Is written communication the best approach or is the discussion better to be had in person at a pre-arranged meeting? Rather than just hitting “reply” to an email, start a fresh email and enter the email address last (to avoid any accidental “sends”). Take your time – draft your text or email then come back to it later and imagine how a Judge or respected family member or friend may view what you’ve drafted and the tone of it. Hit “send” only when you are sure the tone and message are right.

If you are tempted to have an angry vent about your ex partner online, think again. It could well end up attached to an affidavit or even be the subject of a defamation claim. Overseas, there have also been cases where the Court has punished a party for their online comments about their ex and cases where “gagging orders” have been made, stopping parties commenting online about their divorce. As the saying goes, if you can’t say anything nice…

Change your passwords – these days, we seem to have a password for everything. Although these are supposed to be private to the individual, it isn’t unusual for passwords to be shared between spouses or for them to be based upon things that are easily guessed by a former spouse. Change your passwords for all email and social media accounts you have and if you only have a joint email account, set up your own personal account for your post separation legal and personal correspondence.

For pragmatic reasons, you and your ex may still wish to share access to certain accounts for a period after your separation. However, think carefully about what accounts (phone, power, credit card, bank) you want your ex partner to still have access to and change the passwords to those that fall outside this.

Nothing is private – It is hard to maintain you can’t afford to pay more financial support when your ex has seen your photos on Facebook of your recent overseas holiday or your post asking for advice about the purchase of a new boat. Likewise, maintaining a message of sobriety isn’t possible when your Twitter account is littered with the insights you had last night while under the influence.

It is easy to assume that only those you’ve accepted as friends or contacts on your social media accounts can see your posts and photos and that, because your ex is no longer in that category, they won’t learn what you are posting. It is all too easy to forget to alter your settings to restrict who can see a post you have made. Even if you do set up your posts and photos so they are only seen by your friends, it is all too easy to lose your privacy if a friend shares your post. Ditto for photos your friends post of you.

In a similar vein, be careful about what you post to online groups. Even posts to closed groups may be seen by members of the group who know your ex and who may feel compelled to pass on the information.

The pocket dial – We’ve all done it. Left your phone unlocked and accidentally dialled a number, unaware the person called is now listening to you belt out a song while driving home. LOL. Not so funny if the pocket dialled is your ex who then listens to a conversation you’d rather she or he hadn’t heard. Believe me, its happened. Lock your phone.

What about the Kindle, iTunes, Apple accounts? When couples divide up their assets, they often overlook the online repositories they have for their music, books, games and movie collections. Often these are have had considerable money spent on them and they can also hold significant emotional value for one or both parties. Splitting up the music collection just got a whole lot more complex, especially when some providers have rules against splitting or copying accounts. If you have significant collections online, its best to raise this early with your lawyer so they can be negotiated in your property division.

Very few of us manage to live our lives untouched by technology and social media but some careful thinking before acting (or texting or posting…) can mean you avoid the risk of having your online communications becoming an issue in your separation or family law dispute.

At Family Law Results we are experienced at helping guide you through your separation or family law issue. Feel free to contact us at lawyers@familylawresults.co.nz or on 0064 9 297 2010.

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