Being Mindful Of Your Words During Separation And Divorce

During a divorce, there is so much mental processing going on. Your whole world has been upended, either by your choice or someone else’s choice. Regardless of whose choice it is, you deal with anger, grief, uncertainty, sadness, and loss. It is only natural to reach out to loved ones for support. However, this is where you need to be mindful. There are several reasons to choose what you say, to whom, and in what way carefully, despite your first instinct.

Photo credit: Priscilla Du Preez

First of all, in the divorce process, you will likely go through a process called discovery. This process allows your spouse to request documents, statements, and potentially access to items (like a phone or laptop) that you will, in most cases, be required to produce (although there are some exceptions.) These can include emails, text messages, social media posts, and profiles. In rare cases, you could have to provide your phone or laptop to an IT Tech Specialist to pull information. These items can be from your spouse or, more importantly, you and a third party, like friends, family, or someone you have recently started a new relationship with. In addition, it is common for attorneys to request information from Facebook, messaging apps, dating websites, emails pertaining to the disillusion of the marriage, or your children. It doesn’t have to be something that will be used for your case; it is something that is “reasonably calculated to lead to admissible evidence,” which is a really broad standard.

Additionally, persons you talk to can be called as witnesses or deposed in a formal process where they must answer questions under oath asked by the opposing attorney. For example, bad-mouthing the other parent to a teacher or someone at school could potentially later come up in court if they are called to testify. Even worse, that errant conversation with your family about your estranged spouse when the kids are not really out of earshot (those kiddos are a lot smarter and sneakier than you think sometimes.)

Photo credit: Christina

Lastly, while adultery was a crime in Virginia, and often paramours could hide behind the 5th Amendment Protection of not incriminating oneself, now that adultery is no longer a crime, that protection is gone, and paramours are frequently deposed.

Where the rubber hits the road is generally two common areas: (a) the way you are co-parenting and making decisions (b) spousal support issues. Bad mouthing a parent, whether through emails, conversations, or messages, frequently shows a lack of respect and ability to effectively co-parent and support a child’s relationship with the other parent. These are two factors the court looks at to determine decision-making and custodial schedules for the minor children. The court cannot order spousal support to someone guilty of an affair unless the court finds there to be what they deem manifest injustice. There is no set standard for manifest injustice, and the trial judge determines it. So, while there likely may be an excellent case for manifest injustice, the road to trial is paved with discovery, depositions, and a lot of stress.

I hope your life isn’t in a place right now where this is relevant. And I want to stress the importance of mental health and good coping skills, which include being able to communicate with others and share your feelings. Every case is different and unique. But it’s good to be mindful of what you are putting out there, in what way, and to whom. And before you hit send on that email or direct message, ask yourself if you will be ok if the email was read by someone without the benefit of knowing you and your personality for more than a few hours, who will make important decisions about your life, because that is what a Judge will do. If the answer is no, then maybe type it out and delete it (putting it in writing can be cathartic) or type it out and send it to your attorney with whom you have the benefit of attorney-client privilege. (There are some perks to having a lawyer - having someone who can’t share your secrets is one!)