I’ve had several tumultuous cases go nuclear because of what one of the parties posted on Facebook, and I’m sure most family lawyers have experienced something similar. (If children are involved, nothing gets clients angrier than when the other party’s new spouse or partner posts pictures of the kids on their own account.)
A story in Saturday’s National Post describes how divorcing couples are setting ground rules for Facebook and Twitter (and presumably MySpace, if that’s still around):
In what one high-profile US attorney deems a “2010 phenomenon,” some estranged couples agree not to post pictures of their new flames online, others make a pact not to “share” about their children on public Facebook walls, and still others declare a “tweet” truce — forgoing any mention of one another or their settlement agreement in 140 characters or less.
It is the modern equivalent of the old problem of “walking down the street and saying ‘Listen to what my no-good spouse did to me,’” and compounding it to the ‘nth degree, said Grant Gold, past chair of the Canadian Bar Association’s Family Law section.
“I see it all the time where a couple will agree to disengage from Facebook — to separate from it, if you will, at least temporarily,” said Deborah Mecklinger, a Toronto-based divorce coach and mediator. “I’m hearing more and more clients talk about this, and I’ve absolutely heard one spouse complain that the other was sharing too much.”
The divorcelawyers interviewed say that while they have not encountered a divorce agreement that explicitly precludes spouses from bashing each other or disclosing details of a settlement on their preferred social media, that may soon change.
“This may be becoming something that we, as lawyers in a family law case, should be considering,” said Harold Niman, a family lawyer with Niman Zemans Gelgoot and associate editor of the Reports of Family Law. “Neither party is interested in having their settlement agreement made public knowledge, and there is an implicit agreement that it won’t … But perhaps it needs to be explicitly stated.”
Mr. Niman said more and more clients may start seeking non-disclosure agreements, and more and more non-disclosure agreements may — out of an abundance of caution — specifically reference social media sites.
However, “precluding people from posting comments about the whole ‘why we separated’ or the ‘my husband cheated on me 11 times’ would be very difficult,” he said, as it “brings up all sorts of issues of freedom of speech.”
Still, one British Columbia judge has waded into the fray. The province’s supreme court last year ordered that a father “immediately change his Facebook password to ensure [his daughter] has no access to his account,” which the judge said was laden with “adverse comments about her mother and the court proceedings.”
That case was apparently Bains v. Bains, 2009 BCSC 166.