The old maxim goes: If you can't say anything nice, don't say anything at all. For divorcing spouses, that may actually constitute legal advice in these days where Internet and social media sites have become a significant part of many people's daily lives. Divorce is an emotionally charged topic, but letting it all out in a public forum can lead you right into court, sued for libel or having a harsher judgment levied against you in a divorce settlement.
"You give up so much privacy, and if you don't understand the consequences of it, you can really have problems," says Adam Swickle, a divorce attorney in Fort Lauderdale, Florida. "The Internet is a dangerous place to comment on your divorce."
According to a 2010 survey conducted by the American Academy of Matrimonial Lawyers, 81 percent of their members said that they had seen an increase in the number of cases using social networking evidence during the last five years. So if you use social media sites frequently, and you're in the midst of breaking up a marriage, consider the following:
1. What you write can get you sued.
"You can call someone an idiot or a jerk, and you're okay because it's your opinion," Swickle says. "We have freedom of speech in this country. Even if it affects your reputation, if it's the truth, you can't sue for it."
But where you might get in trouble is if you lie, warns Swickle. For instance, if you call your ex a deadbeat dad who is behind on his child support payments, or an abusive alcoholic, and none of this is true - and he or she can prove it isn't true - then you could be successfully sued for libel. But those cases are rare because they're hard to prove, says Swickle.
It's also hard to prove that a barrage of Facebook or blog posts are, say, harassment or even a form of Internet stalking, says Jacqueline Newman, the managing partner at a New York City matrimonial and divorce law firm. She says that you'd have to show evidence of damages.
But she recommends that if you have an ex who is going off the deep end, ask your lawyer to talk to your ex's lawyer. "The hope is that the lawyer will be able to control the client and explain to the client that all of this ranting online isn't going to be beneficial to their case," says Newman.
2. Even if legal, some statements can hurt you.
Short of libel, there's still a lot of trouble that you can get into. Newman once had a client who wrote a blog post trashing her soon-to-be ex. "She said he was a liar, a cheat, a thief and couldn't be trusted," Newman says.
While it may have felt good for Newman's client to get all of that off her chest, the blog was read by her client's husband's boss. "It had a direct impact on his career which therefore had a direct impact on his financial ability to provide for her and their children in the future," says Newman. "It was a very expensive blog for both of them."
Also, those rants, missives and photographs are now often getting handed over in paper form to a grim-faced judge who is deciding which parent is the more deserving of full custody, or how much alimony should be shelled out.
"Judges don't like reading those blog posts, tweets or Facebook status updates," Newman says. "Especially if you have children. These things don't go away, and a judge will tell you that your children will learn to tweet, and they'll read what you write in the heat of the moment. It's awful. Loose fingers can be worse than loose lips."
3. Even if nothing you write is negative, it can still hurt you.
"In a divorce case, there's nothing better for the other side when you have someone claiming they have no money for spousal or child support, and yet they're talking on Facebook about the vacation they just took," Swickle says.
If you are concerned about your ex discussing you on social media, you can try to work protections into your settlement. "How much teeth that will have in litigation is another question," says Newman, "but someone might be scared enough that they don't want to find out."
During a high-profile court case, the judge also might decide on his or her own that nobody should be blabbing on social media and issue a gag order, in which neither party can talk about their case to the public. That happened earlier this year with former Dallas Cowboys star Deion Sanders when he was going through a turbulent divorce with his wife, Pilar. Deion wrote tweets relating to his divorce, which was in violation of the gag order, Pilar's attorney, Peter Schulte, argued at the time.
4. An apology may be in order.
If you've trashed an eventual ex on the Internet and regret it, these two words might rescue you: I'm sorry.
"You can't unring a bell," Swickle says, "but just like a newspaper, you can print a retraction. You can say that yesterday you were angry and what you wrote really isn't true, please ignore it. It's the smart thing to do, and it may take you out of a problem."
In fact, earlier this year, a Cincinnati-based photographer, Mark Byron, criticized his eventual ex-wife on Facebook and blocked her access so she wouldn't see it. Nevertheless, she did, and then so did a judge, who ordered Byron to post an apology to his wife for the next 30 days - or face jail.
Byron posted the apology for the next 26 days, stopping a little early after deciding his free speech was being derailed. The judge, who had been criticized in the press for trampling on Byron's free speech, disagreed with that assessment but didn't send him to jail.