How Technology Has Impacted Divorce and Family Law
Mar 31, 2021 | Written by: Share|
When I first started working as a lawyer, the internet did not exist. There was no email, cell phones or text messaging. There was no social media. There was no video conferencing, no Zoom, no Teams. While all this technology that has advanced since then has made our lives better in many ways, it has also made our lives more difficult, hectic, and worse in some ways. This is particularly true in the context of family law matters.
In 1993, when I wanted to contact a client or another attorney with an issue that needed to be confirmed in writing, I would either mail them a letter, or if it was urgent, I would fax them a letter. Most clients did not have fax machines, so if you needed them to review a letter before sending it, you either had to read it to them over the phone or mail it to them in advance. Clearly, not very efficient! Now most communication with clients and other attorneys is through email. Letters can be emailed to clients for review before they are sent out. Letters received from the other attorney can be emailed to the client immediately for review and reply. This has made things better in terms of efficiency and timing.
However, email has also changed people’s expectations. When an email is sent to their attorney, they expect an immediate response, even when their attorney is not available. When an attorney sends an email to the other attorney, the client (and sometimes the attorney) expects an immediate response, even when the other attorney is not available. Even attorneys expect clients (or the court staff) to respond to emails immediately. Email has created a false sense that every issue is urgent and everything must be responded to immediately. Certainly, email has impacted all areas of the practice of the law, but none more so than family law, where clients often feel like every issue is an emergency that must be immediately addressed. However, this is understandable given that there is so much emotion involved. While divorce attorneys are able to address issues more quickly because of technology, clients and attorneys should be careful not to expect everything to happen immediately, as that expectation is unrealistic especially in family law matters. These unrealistic expectations cause a tremendous amount of additional unnecessary stress and strain on an already stressful situation for clients.
Cell phones have also made attorneys more efficient, and it has often become easier to address issues quickly. Attorneys will often use their cell phones to contact clients when they would otherwise be unavailable, such as while they are driving and other times when they are outside of the office. If attorneys are willing to provide clients with their cell phone number, clients are able to communicate via text messaging as well as calling. Of course, the downside for attorneys is that they often are barraged between emails, text messages and phone calls, and it can become overwhelming. All of this technology has created an environment where attorneys (and others in society) do not have the same amount of downtime they once had unless they are able to shut themselves off from the email, text messaging, and cell phone contact that now comes along with practicing law. Attorneys often bring laptops with them when they are outside the office, which again provides better efficiency in some respects, but also makes it more difficult to set the work aside and turn it off at the end of the workday, or the end of the workweek. The lines have become blurred in terms of when the workday and the workweek starts and ends.
Even the COVID virus has created some technological advances with positive and negative consequences. As a result of the court being shut down and having limited staff present after the initial shut down, the family division was required to implement an electronic filing system to allow for filing by electronic means rather than filing documents through the mail or by physically dropping off items at the courthouse. That has certainly benefitted both the clients and the attorneys in divorce cases. It has also reduced expenses because in addition to not having to pay postage, attorneys do not need to overnight or fed ex documents to the court or have them hand delivered by a messenger if same day filing is required. The use of video conferencing has reduced costs because attorneys are not traveling to the courthouse to make appearances. However, both electric filing and video conferencing can fail when there are computer or internet problems.
Three areas of family law have been particularly impacted by these technological advances: domestic violence cases, cohabitation cases and infidelity. Prior to the advent of emails and text messaging, a harassment-type domestic violence case would typically be a he-said/she-said situation when there were harassing comments. With text messaging and emails, there is now an actual record as to what was said between the parties in many cases. There are also Facebook posts or other social media that can be used as proof of harassing behavior. Unfortunately, it is much easier for people to lash out through emails, text messages and other social media than it is when the parties are face-to-face, not unlike cyberbullying. Of course, this is contrary to logic, as parties should realize that by putting statements in writing, whether text, email, or social media posts, there is proof of their statements and it could be used against them in court. Unfortunately, we continue to see that people do not think before they email or text message. Now the majority of harassment-type domestic violence cases include damning evidence from text messages, emails or social media posts.
The second area most impacted by technological changes is cohabitation. The short definition of cohabitation in divorce cases is when an individual receiving alimony is in a serious relationship, similar to a marriage (note that most alimony statutes provide that living together is not a requirement for a finding of cohabitation). Cohabitation has an impact on divorce cases, during the divorce itself, or after a divorce, where the person allegedly cohabitating is receiving alimony. Years ago, cohabitation typically required the use of a private investigator to document the amount of time the parties were spending together (other than the obvious cases when parties bought a house together or signed a lease together and were living together full-time). However, due to social media, in many cases there is more evidence readily available without the use of a private investigator. When divorced parties are dating, often they will catalog their relationships on social media. They will post when they go out to dinner together, when they go on vacation together, and when they attend family events together. They will post their anniversaries, one month, six months, one year, etc., on social media. They will post pictures of gifts that they give to each other. All of these types of social media posts can be used to prove a relationship is serious and should be considered cohabitation.
Finally, social media, the internet and technology have also impacted divorce cases in regard to infidelity. Where there is infidelity, often the infidelity results in the end of a marriage, although there are also many cases where the marriage was already over when the infidelity took place. Although infidelity has been a part of marriage and divorce since the institution of marriage was created, and years ago affairs required secret telephone calls on landlines, now individuals use cell phones and the internet, which makes the communication much easier. Social media sites like Facebook have also made it easier for infidelity to take place. Divorce attorneys often joke that it should be called Cheatbook rather than Facebook, since Facebook often helps to facilitate the infidelity. Individuals can easily connect with old girlfriends or boyfriends. When they are unhappy with their spouse or want to vent about their spouse, they get in contact with that individual and you know the rest of the story. Even when physical relationships do not happen, there are often emotional relationships created through this technology that result in the end of a marriage. What the internet and Facebook have also created is the evidence of infidelity, and these tools have made it easier for individuals to get “caught” in their new relationship. In countless marriages, a spouse will discover their partner’s infidelity because of seeing revealing emails, Facebook messages, text messages or cell phone calls from another individual.
In some ways technology has made our lives easier while also making our lives more complicated and difficult. This is true for lawyers and clients alike. If we can find a way to use technology for positive and avoid the negative aspects, it will provide a much greater benefit for all of us.