Divorce | Social Media & Digital Privacy Part 2 of 3 | The Marks Law Firm in St Louis MO


Hi. My name is Chris Montgomery, and I’d like to welcome you to this week’s episode of TNtv. This week is part two on our three-part series of how technology has impacted family law, specifically in the area of divorce. And once again, I have with me Jonathan Marks. Thanks for having me. So Jonathan, obviously we’ve covered a lot of ground when it comes to hardware, specifically: phones, laptops, desktops, employee/employer owned or whatever the case might be. So let’s talk a little bit then about social media. OK. Obviously, these are not things that are physical pieces of hardware. Now it’s something that somebody is going out, putting in a status or a post, or tagging themselves somewhere, and it’s being broadcast out to everyone. How does that relate to the bigger picture when you’re talking about how
information can be collected in turn admissible in the future? well look if the person who puts it out
there Facebook, Twitter whatever it may be
yeah it’s open season so that person going to be able to you
not be surprising your spouse walks in and they have pages full of posts and pics where they’ve
just gone about and given up information that would be
useful the other side. and that doesn’t even necessarily have
to be in bad conduct per se we could even be that somebody says
there are unable to work outside the home in see this may be a maintenance case
and you have been posting yourself traveling all over the world. You’ve been posting yourself at the gym, you’ve posted yourself doing all these wonderful
things been coming to court with a totally different approach okay so and the social media aspect of
it is huge you mean the one thing that is an attorney when somebody comes in
you definitely want to be able to tell them is you know Do you post? Do you tweet? What is it that you do, because it needs to stop while we’re going through this process? That’s number one. But anything that you’ve done already you know is going to be seen at some way, one point in time, as going to be downloaded and will come back to haunt you if you did it in a manner that is problematic. So as they say, the Internet never forgets. Correct. I would agree with that. And I’m going to throw you for one more here. All right. Somebody sends a private message to their Facebook; it’s no longer now in a status or a post, but it is being transmitted utilizing social media. Is that viewed maybe in a similar way as email? Well, yes and no. I mean the reality is it’s very difficult to be able to then obtain that information, so if it was important and the lawyer really thought that it was necessary, they would have to issue a subpoena where Facebook is and you’d incur somewhat of a large expense in the ability of registering a case out in California and then proceeding forward. OK. Similar to what we used to do for Google, you know, we’d have to go out there, open up a case, and try to subpoena them. So from that aspect it is probably more safe. Is it admissible? Sure if it’s obtained properly, or look at it the other way. You mentioned earlier about the family computer. you know somebody’s on their doing
private messaging. They go out to walk the dog out. The spouse comes into the room, and that computer is up. You get a response to that message. Boom! It’s sitting up on the screen. At that point in time your privacy is totally out in the open and you have no expectation that that’s going to remain private. So again, it’s probably not the best idea. So Jonathan, we spend a tremendous amount of time going over social media, hardware; I mean, a variety of methods of communication people can employ to be in touch with somebody maybe they should or should not be in touch with depending on what their marital status might be. So then that really begs the question and really something that you alluded to in the beginning; a digital privacy clause, OK, as part of a prenuptial is concerned. Can you expound on what that is, maybe what it includes, and really why it might be important and when somebody should look at that and say, “You know what, just to be safe I need to put something like this in place.” Well normally you would look at it in a prenuptial agreement. So if you knew you were entering into a marriage, you were concerned you are concerned about what me occur
down the future you might want to consider putting in a digital privacy clause so that should the two of you end up in a dissolution situation that your tax, your emails, your postings, the various things that were meant to be private within a household remain private. And so you are contractually bound on both sides, because it’s a prenuptial, so it’s equal to both spouses entering into this marriage. Then those things remain private and you avoid what could be a
very embarrassing situation not just for the two of you in court as to what took place, but also for your children down the road as they become older. This information could end up posted somewhere on the Internet. You want to be able to ensure that these things remain private, because that family structure is something you don’t wish to destroy. And so, it’s a great insurance policy to put in within a prenuptial agreement. OK. So essentially what I’m hearing you say is that if you haven’t a digital privacy clause in place with someone even if it’s community property, back to the example we had given earlier where it’s a PC that’s located in someone’s kitchen. Sure. At that point an agreement has been prearranged, if you will, in the form of a prenuptial. Correct. And in doing so that information is no longer admissible. Correct. You’re basically ensuring the fact that should these things occur down the road that that bad conduct so to speak is going to remain private and not permeate throughout the case, or within the family. OK. So whether you’re doing this on the front end in the form of a prenuptial or on the back end as far as how you’re going to engage as far as the divorce proceedings are concerned, can you give me a summary of the three benefits of doing one or the other? Sure. First of all, you’re looking at an agreed upon destruction of these particulars. So if there’s something out there that can be problematic to you in the future, you’ve agreed that they’re going to be destroyed. Second of all, by doing so you’ve assured that you have privacy within the relationship and there’s limited exposure, and as a result of it you’re going to feel secure in the situation even though you’re going through a divorce. And the third thing is you are also assuring that children, family members, business entities, and associates, you avoid any of that becoming problematic to you in the future; and as such, again, it’s a great insurance policy to know that you can be rest assured that by agreeing to these things up front you and your spouse are on the same page, even though you might end up being divorced, on the destruction of these items. So Jonathan, I thank you so much for your time today. It’s been very informative. Thank you. I appreciate the time as well, Chris, thank you. And I thank you for your time as well. If you do want more information on how Jonathan and the Marks Law Firm can assist you, please don’t hesitate to contact them using the information behind me. But once again, I appreciate your time, and I look forward to seeing you next time on TNtv.

Michael Martin

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