On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Thursday, April 18, 2013
We live in the Internet age of dating, where relationships begin and continue increasingly in a secretive, unmediated, unmonitored online environment of profiles and posts through third-party social media websites, some free, like Facebook or Plenty of Fish, some paid, ranging from Match.com and eHarmony to blatant infidelity sites like AshleyMadison.com.
Let’s examine the ways in which some of these sites facilitate adultery and the ultimate ending of a marriage. For those who do not know, Ashley Madison, created in 2005, blatantly advertises itself as a discreet site for married individuals to have an affair. They advertise extensively, even on mainstream XM Radio channels like MSNBC, with catchy jingles talking about an “Ashley Madison Man” traveling the road for his family and just needing some comfort to keep his family whole — the lack of any respect for family values as the basis for keeping intact the family it allegedly values. We must give them credit for boldness and relative truth in advertising.
Men and women interested in finding a partner in marital crime need only join, create a profile and begin trolling for matches. Pictures may not be posted, and if so, may not be accurate or real. The same goes for an individual’s biographical data. But one figures if you join a site dedicated to cheating, you will be more willing to be accurate, particularly if you think the site is for members only (not entirely true…some profiles visible to search before joining). Regardless, one intent on cheating will find this form of connection unbelievably easy. To cheat in more “traditional” ways requires “hitting” on a married individual in public, with witnesses who may know you and could later testify against you. You might have to be more public in your infidelity. With Ashley Madison, everything can take place online, including scheduling very private meeting places.
So Ashley Madison appeals to anyone who may be intrigued by the idea of cheating and getting away with it. It may take an unhappily married man or woman and give them the idea to take that step toward adultery, and it certainly gives them a ready forum to do so under the radar. Indeed, the advertising on mainstream media stations suggests something normal or at least less wrong than violating marriage vows. It certainly hides the pain cheating causes to spouses and children, even glorifying it as a family value — don’t divorce, just cheat.
If a man or woman joins Ashley Madison and has an affair that leads to the end of the marriage, can Ashley Madison be held responsible in any way?
In the eight states that still recognize the tort of alienation of affections, it would seem so. Alienation of affections allows a spurned spouse the ability to sue the adulterer who alienated the affections of the cheating spouse. It would not be a stretch to argue that the tactics used by Ashley Madison (including its bold advertising, encouraging infidelity and making available a paid forum for adultery) should qualify under those statutes. In states, like Missouri, that have abolished that tort, could a scorned spouse find relief? That remains an unknown and somewhat unexplored area of the law. If adultery were a crime (and it may still be in some states, just never prosecuted), Ashley Madison could be sued under federal racketeering statutes. Some statutes regulate advertising, and theoretically one could sue for false or misleading advertising based on the family values idea. Also, one could try negligent or intentional infliction of emotional distress — harder claims, but possible. While these suits may seem a long shot, one wonders why they should be — if a company exists to breed adultery which it knows destroys marriages, should they not be held responsible? The biggest problem to recovery is the modern view that adultery is not necessarily needed for divorce, or even the basis for a penalty in terms of an unequal distribution of property or an award of maintenance (statutes allow it but courts seem less inclined to punish the conduct unless it would be a serial situation over years with demonstrable harm to the other spouse).
The Internet has changed relationships and consequently marriage, both in making them and breaking them. Some will argue that the technology shows no respect for marriage and facilitates killing the institution. Others assert that we live in a new world where marriage is not the bond traditionally assigned to that union, and exiting a marriage should not be so punitive. That is, after all, why we have abolished fault, the tort of alienation of affections and other modern divorce statutes. And while why can see the changes to punishing adulterers, it seems less easy to dismiss punishing the pimps who make it far too easy, or encourage it to happen when it was never really intended in the first place.
In a future post we will discuss the role other social media sites have in a dissolution of marriage.
If you have questions about social media and divorce, contact us — we can help.