Chris: Hi, my name is Chris Montgomery. 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 divorce. And, once again, I have with me, Jonathan Marks.

Jonathan: Thanks for having me.

Chris: Yeah. So, Jonathan, obviously we’ve covered a lot of ground when it comes to hardware, specifically phones, laptops, desktops, employee-, employer-owned, whatever the case might be. So, let’s talk, then, a little bit, then, about social media.

Jonathan: Okay.

Chris: Now, obviously, these are not things that are something that’s a physical piece of hardware. Now, it’s something that somebody’s 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 and turned admissible in the future?

Jonathan: Sure. Well, look, if the person puts it out there, Facebook, Twitter, whatever it may be, it’s open season. So, that person’s going to be able to not be surprised when their 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 to the other side. And that doesn’t even necessarily have to be in bad conduct, per se. It could even be that somebody says they’re unable to work outside the home. You’d see this, maybe, in a maintenance case. And you have been posting yourself, traveling all over the world, you’ve been posting yourself at the gym, you’ve been posting yourself doing all these wonderful things, but you come into court with a totally different approach.

So, the social media aspect of it is huge. I mean, the one thing that, as 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 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 gonna be seen, at some way, one point in time, is going to be downloaded and will come back to haunt you if you did it in a manner that is problematic.

Chris: So, as they say, the Internet never forgets.

Jonathan: Correct.

Chris: Right.

Jonathan: I would agree with that.

Chris: And I’m gonna throw you for one more here, if I may.

Jonathan: All right.

Chris: If somebody sends a private message through 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?

Jonathan: Well, yes and no.

Chris: Okay.

Jonathan: 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 would incur somewhat of a large expense of the ability of registering a case out in California, and then proceeding forward. Similar to what we used to do for Google, you know, we have to go out there, open up a case, and try to subpoena them. So, from that aspect, it’s probably more safe.

Is it admissible? Sure, if it’s obtained properly. Or, you know, look at it the other way. You mentioned earlier about the family computer, you know, somebody’s on there doing the private messaging, they go up to walk the dog out, the spouse comes into the room, 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 gonna remain private. So, again, probably not the best idea.

Chris: So, Jonathan, we spent 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 state might be. So, then, that really begs the question, and really something you had alluded to in the beginning, a digital privacy clause as far as a prenup 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.”?

Jonathan: Well, normally, you would look at it in a prenuptial agreement. So, if you knew you’re entering into a marriage, you were concerned about what may occur down in the future, you might wanna 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’re contractually bound on both sides, because it’s a prenup so it’s equal to both spouses entering into this marriage, that 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.

Chris: Okay. So, essentially, what I’m hearing you say is that, if you have 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, at that point, an agreement has been prearranged, if you will, in the form of a prenup, and in doing so, that information is no longer admissible.

Jonathan: Right. Well, it’s… 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.

Chris: So, whether you’re doing this, then, on the front end in the form of a prenup 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, just really, of the three benefits of doing one or the other?

Jonathan: 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’re 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 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.

Chris: So, Jonathan, thank you so much for your time today. It’s been very informative.

Jonathan: Thank you. I appreciate the time in, as well, Chris. Thank you.

Chris: Absolutely. 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.

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