Divorce in the Digital Age
Technology has changed the way most of us do business, communicate with friends and family, and conduct our social lives. It’s also changed the face of divorce.
Divorcing couples face two kinds of digital peril: high-tech sleuthing and social media — both of which are now easier than ever to access, use and misuse.
Spy vs. Spy
“Lots of people think that because the technology is available to spy on their husband or wife that they should spy on them,” says Mike McCurley, name partner in the Dallas family law boutique McCurley Orsinger McCurley Nelson & Downing, L.L.P. “Trouble is, many of those little gadgets you can buy online are flat-out illegal to use in the state of Texas.”
“Bright, educated professionals can become like scorned teenagers during a divorce,” says McCurley Orsinger name partner Keith Nelson.
McCurley notes that not all spying is illegal, but the difference between the permissible use of a monitoring device and an illegal invasion of privacy is a fine line that is being redefined by the courts on a regular basis.
Is it okay to read a spouse’s emails? Can one spouse install a program that records keystrokes on a shared computer? Can you install hidden cameras in the living room? What about the bedroom? What about GPS tracking devices on cars?
In each of those cases, says McCurley Orsinger name partner Keith Nelson, it may be illegal to use those devices, or it may be perfectly legal. It all depends on the particular circumstances.
“That’s why if a client comes to me with information he or she may have obtained in a questionable manner, we confirm that it was legally obtained before we use it as evidence,” he says. “My best recommendation is to talk to your lawyer before you do any high-tech snooping on your spouse.
“The last thing you want is an invasion of privacy lawsuit or, worse, criminal charges at the same time you’re dealing with divorce.”
Think Twice Before That Status Update
Even more common than amateur spies, however, are indiscreet users of social media. Family lawyers have a love-hate relationship with websites such as Facebook, Twitter and Instagram. They love it when their client’s ex uses poor judgment and drops a smoking gun in their laps, but they hate it when their own clients perform that service for their opponents.
“Bright, educated professionals can become like scorned teenagers during a divorce,” says McCurley Orsinger name partner Scott Downing. “I’ve seen Facebook posts that all but admit to infidelity and Instagram photos of deadbeat dads standing next to piles of cash they just won at the casino.
“Good judgment sometimes goes out the window during divorce.”
Mary Jo McCurley, Mike’s law partner and wife of 30 years, advises divorcing spouses to stop using their social media sites altogether during divorce and to change their privacy settings to disable others from being able to “tag” them at events and in photos.
“Nobody needs a photo of them at a party while they’re fighting for custody of their children,” she says. “It might not make a difference to the judge, but you truly never know. Why risk it?”
The Upside of Technology in Divorce
Technology may offer plenty of downsides to divorcing couples, but as we all know, there can be benefits as well. Skype and FaceTime can help non-custodial parents maintain their ties with their children between visits by making “face-to-face” visits part of their nightly routine. Facebook and other networking sites can also help fractured families stay in touch long after the divorce is final.
But the key is good judgment and discretion, Mike McCurley says.
“Most parents tell their kids not to post anything to social media they don’t want their grandmothers to see,” he says. “I tell my clients not to post anything you don’t want seen by the judge or your ex’s lawyer. They’re much, much scarier than Grandma.”