In modern divorce, Facebook is an “evidentiary goldmine”
If you’re a Facebook user, you’re probably used to it.
The awkward status update. The information that not too long ago, you’d discover via word of mouth, perhaps whispered between friends while another was retrieving around of drinks or in the bathroom- a social courtesy to those wronged in order to bring everyone in your social circle up to speed and avoid future mutual discomfort. (“No, Jane moved out!” “Tim’s dad ran off with his secretary!” “The garbage truck ran over their dog.”) Now, thanks to the prevalence of social networking, what would once be whispered and relayed in person is now delivered via a clinical status message. Not everyone has, thankfully, adapted to this tell-all way of handling personal affairs described in a recent Salon article as requiring “a peculiar mix of anger, candidness and exhibitionism, maybe even a tinge of desperation.”
As old social mores fall away, though, that’s where the tricky part comes in. If you’ve been divorced, or experienced any kind of grown-up trauma, the compulsion to express the abject horror you may feel at your life coming apart at the seams is difficult not to vent to friends. (Alas, teenagers and college students are even more prone to those feelings, although arguably have less to lose.) But until not too long ago, words said in anger to your friends were understood, in context, taken with a grain of salt. Now, a split second judgment, a night of drinking and/or building frustration can be screencapped and spread virally before the hangover wears off. And friends means all your friends, even by loosest definition. People you met on a messageboard. Anyone you ever ate lunch with in high school. College roommates. Your dog groomer, your co-workers from eight years ago, and of course, your mom.
The Salon article tells a user’s story, an acquaintance liveblogging her own worst-moment-so-far:
Her former classmate “posted on Friday at 9 or 10 p.m., ‘He’s decided that he can’t stand me, he wants a divorce, we’ve only been married 5 months, I’m pregnant, he’s on the phone with his ex-wife right now, asking her to take him back.'” She continued, “This thing is happening to you, right, and you get on fricking Facebook? I would call my best friend crying, I would leave the house — I don’t know what I would do — but writing on Facebook would be the last thing on my mind.”
Even reading that, third or fourth-hand, is painful. But having been in a similar situation, I’m glad Facebook wasn’t around then. I can’t see personally expressing something so raw there, but such a story is almost divisive in the reaction it elicits- as if you can only really understand that impulse if you’ve been in that awful place. (Indeed, I can relate to a degree. My own husband, with whom I have two children, casually defriended me after eight years of marriage when he moved in with a waitress ten years his junior and, I believe, realized the shared last name outed the reality of his situation to her friends and family. It was not particularly hurtful at that juncture, but felt incredibly disrespectful.)
Which leads me to the interesting legal conundrum this very personal social networking status update issue presents. There’s no filter on Twitter, Facebook or messageboards. The very minute you hit “update,” your words cease to be yours. We’ve all seen high profile people try to retract words said in haste (like Perez Hilton’s harsh words before the death of Michael Jackson was confirmed) only to have their retraction lend credence to later criticism. Lawyers now fear and love Facebook for that very reason. A client can tank a case with “is in a relationship with,” and formerly he-said, she-said issues (like adultery) can be proven through seemingly innocuous acts like the tagging of a photo.
Maintaining a private profile is no measure of safety either- there’s no reasonable expectation of privacy on Facebook, and crafty investigators can dig up deleted data to use against you in civil or criminal matters. As pointed out in the Salon post, abstinence may be the best policy for ultra-personal matters:
Many lawyers, in fact, advise clients not to get on Facebook, MySpace or Twitter at all during a divorce, and some firms require that clients suspend their accounts. “Those bunny ears at Halloween may have been harmless, but they can be used to paint a fairly nasty picture in court,” writes Jones, the Memphis divorce lawyer.
Facebook, like the weather, is impossible to control. “It’s not like bitching about your ex-wife to your neighbor over the fence,” said Laura Merritt, “you just told 600 people, who might tell 600 people …” Find yourself a neighbor and a fence. After all, during a divorce, people need to vent — non-disparagement clauses exist for a reason — it’s only now, post-Facebook, that there exists a permanent digital footprint of that venting. As a law student wrote in “Social Media Law Student,” an online blog about the topic: “People will express themselves, albeit to their own detriment, through numerous mediums, whether by electronic communication, acts of aggression, verbal comments, physical actions, written letters, and more. Social media networks are not to blame for sheer stupidity… stupidity is now just easier to prove.”
[Source: Salon, Image: Lamebook]
