I recently attended a seminar on the use of electronic and social media in family law litigation. It is a very broad topic. There are many different subtopics of discussion. Today I will focus on the two categories that I see most often in my practice; the use of text messages as a means of communication between exes; and the use of social media to vent frustration. Here’s the very short lesson: Both are bad. Just don’t do it.
Text Messaging Melee
Just about everyone has a smartphone and almost everyone uses text messaging as a means of communication. Sometimes it is a quick “Be home soon” message, and other times it becomes a scathing dissertation used as a tool to hurt, manipulate or taunt the recipient. If you cannot have a civil verbal conversation with your ex, you won’t likely communicate via text message any better. In fact, you are probably more likely to either interpret something the wrong way (since manner and tone are absent from text) or to hastily type something inappropriate (since you are hiding behind a screen and not communicating face to face).
Be very careful about what you say in a text message. Likewise, be careful about how frequently you attempt to communicate via text. Frequent messages – even if free of callous or hateful remarks – can be just as annoying and irritating to the recipient as one snarky comment. Blowing up the phone with “I love you” or “can’t we work this out?” pleas can form the basis for a harassment complaint if the recipient is not interested.
Electronic data such as text messages, voicemails, email chains, etc. is evidence. Your adversary can compel you to preserve all the data (i.e., restrict you from deleting or altering messages); compel you to turn over your phone as evidence, or compel you to sign a release so your data can be retrieved from your cellular carrier. Do you really want all of that information read into the record in court? Being mad at your ex does not justify a scathing text. If the information indicates that you cannot control your temper in a text message, voicemail or email, a court could easily conclude that you lack the self-control necessary to spend time with your children unsupervised. Anger management, parenting classes, or supervised visitation can be ordered by the court if there is the slightest concern that a child might be exposed to that type of behavior. Just don’t do it.
Social Media Weaponry
Some people think that venting their frustration to Facebook or Twitter without using the name of their target is simply an expression of their own free speech. I regret to inform you that in the world of family law, you cannot just take to social media as a passive aggressive means of therapuedic expression. First of all, even if you are not “friends” with your ex on Facebook or Twitter the material you post can and probably will get back to your ex. When your friend “likes” or “comments” on your post, it gets shared with all of that friend’s friends, and so on, and so on. You are not hiding anything by blocking or unfriending your ex. Your derogatory innuendo about your ex can and will be used against you in divorce or custody cases.
Furthermore, the only person who really truly cares what you say is your ex. Your other 498 “friends” or “followers” have no skin in the game. Some of them might care about you and how you are doing, but they are not the ones going through the divorce or custody battle. If you get hurt, they’ll send you a few sad faces or thumbs up in support, but then they’ll move on to more interesting, fun stuff. Meanwhile, you are stuck dealing with the consequences of what you posted at 2AM three months ago after you received a hurtful text. The lesson again: Just don’t do it.
If you are self-controlled enough not to engage in text message battles or social media therapy, be proud. If you are the unfortunate recipient or target of this type of communication then start keeping track of it. Screen shot it, print it out, organize it, download it, upload the audio of voicemail and copy it onto a CD or flash drive. If you come to court prepared with the documentation – presented in a manner that the court can review without having to actually look at your phone – you will gain the respect of the court and make a persuasive impression.
Best regards, Stephanie