At the end of 2011, the UK website Divorce Online.com reported that postings on Facebook were cited as evidence in 33% of all 2011 British divorces, up from 20% in 2009. Moreover, this is not the first time news stories have reported that the increase in social-networking activity has caused marriages and relationships to crumble.
The study was a follow-up to a December 2009 survey revealing that 20 percent of petitions from persons seeking a divorce based on a spouse’s unreasonable behavior contained the word “Facebook.”
Troubled couples have repeatedly brought up three Facebook-related occurrences as a cause or factor in their divorces. The complaints usually arose after the couple had agreed to a trial separation, and they targeted the following behavior: (1) one spouse’s posting inappropriate messages to members of the opposite sex, (2) one spouse’s posting nasty comments about the other; and (3) Facebook friends’ continually reporting a spouse’s behavior as “offensive.”
Celebrities and ordinary people alike have been humiliated online in connection with a separation or divorce. For instance, former NFL star Deion Sanders’s wife, Pilar, discovered that he’d announced his decision to divorce her on TMZ.com. As actors Katy Perry and Russell Brand separate, Perry recently “unfollowed” her estranged husband.
In addition to causing or expediting divorces, social networking and other online activity can raise other questions relevant to a split: Who gets to retain Facebook “friends,” Twitter “followers,” and the like? And what happens to the virtual property that the couple has acquired together?
In this article, I will discuss (1) how one might divide virtual assets in the event of a divorce; and (2) the growing trend of divorce lawyers’ examining tweets, texts, and online posts, with the consequence that people who are divorcing might be wise to decide not to be as “social” as usual, especially about their new, post-split dating life.
How Should a Divorcing Couple Divide Shared Digital Property and Online Content?
In a divorce, how should one deal with Facebook and Twitter accounts, or shared iTunes libraries? If the members of a couple each kept separate accounts, then the process should be easy: Just unfriend hostile in-laws and others who’ve sided with your ex.
But what if you have a shared webpage or photo site—and what if your divorce is acrimonious or contentious? You may not want your ex-spouse to have access to certain photos, or to your old list of contacts. Thus, you may need to address this issue in your divorce agreement or separation plan.
In some states, marital property is equally divided between spouses in a divorce. These are referred to as “community property” states. For this division to occur, assets must be deemed to be either separate property or “community property.” Even with ordinary assets, the task of characterizing assets in this way can sometimes be difficult. But virtual assets will create new challenges for divorcing couples.
What are virtual goods? Think virtual pets, coins, avatars, and real estate. Virtual goods are non-physical objects that Internet users purchase for use in online communities or online games. Digital goods comprise a broader category of intangible assets, including digital books, music, and movies. Virtual assets may include accessories like clothes or weapons for avatars, or even acreage on a virtual farm. In Farmville, Second Life, and other online games, players spend money to buy enhanced goods and features for their characters. And in some games, you can trade your goods, sell them, and/or convert your virtual currency back into real-world U.S. dollars.
Each day, thousands of transactions take place online over markets such as eBay for virtual swords, currency, or clothing for many online communities and games. If someone needs a more powerful weapon or a new character, he or she may be willing to buy it from someone else.
When real-world dollars that were part of a married couple’s community property are used to buy virtual or digital goods or real estate, those virtual acquisitions may be divided in the divorce. Moreover, when virtual profits are earned, those may also be considered community property
Planet Calypso is billed as an “open-ended social, economic and political action-adventure as a human colonist on a distant alien planet with over 1500 square kilometers.” If a spouse’s wages were used to buy a virtual real-estate development on Planet Calypso, and if the other spouse rented out apartments in this online space, then the first spouse might be entitled to a share of the rent or proceeds from the venture if the couple divorces.
Virtual Properties’ Value Is Already Very Real, and Is Likely to Increase As Time Goes On
Putting aside a spouse’s emotional attachment to his or her online assets, what are virtual assets really worth?
The market is vast. Consumers are spending billions of dollars to acquire property in virtual worlds. And the economic value of virtual goods and property is on the increase. If Farmville’s popularity is any indication, virtual transactions that are settled with real dollars aren’t going away anytime soon.
Consider the 2010 sale of Club Neverdie, in the multiplayer Entropia Universe, the first virtual world with a real-cash economy. An asteroid near Planet Calypso, Entropia’s first planet, is the club’s home. Jon “Neverdie” Jacobs bought the asteroid in 2005 for $100,000, after taking out a mortgage on his real-life house, according to Forbes. Later, Jacobs sold the virtual nightclub for $635,000—reportedly the highest price ever paid for a virtual asset.
Why would anyone pay that much for a virtual property? Because Club Neverdie had become a go-to spot for players visiting its nightclub, stadium, and mall. As a result, Jacobs was making around $200,000 in actual cash every year from players’ purchasing virtual goods and services.
There is also the example of “Anshe Chung,” whose real name is Ailin Graef, the first person in the world to achieve a net worth exceeding one million real U.S. dollars from profits earned entirely in a virtual world. As a resident in the virtual-world game Second Life, Graef’s avatar, “Anshe,” dealt in virtual real-estate in a currency known as Linden Dollars, which could be converted easily into U.S. dollars. The liquid market in virtual real estate allowed holdings belonging to “Anshe Chung” to be assessed in the real world. Anshe’s wealth was amassed in two-and-a-half years with an initial investment of only $9.95. Skeptics who doubt that virtual property could ever be a major issue in a divorce case ought to consider what might happen if someone as rich in virtual property as Graef or Jon “Neverdie” Jacobs were to get divorced.
As the importance of virtual property continues to rise, property and matrimonial laws—including laws regarding community property in divorce—will inevitably develop in such a way as to encompass virtual property. Websites, domain names, digital music and movie accounts, and even shared Facebook pages all create property interests. Courts and lawyers will thus have to grapple with how to equitably divide such intangible assets in a divorce.
A Chinese Precedent May Provide a Hint as To What American Divorce Courts Will Do When It Comes to Virtual Property
To my knowledge, there has yet to be a fight over virtual property in the context of a U.S. divorce. But in 2010 in China, in a divorce case, a woman requested that virtual assets earned by her and her husband over the course of their marriage be divided, along with the rest of their property. The couple met in an online game; married near the end of 2008; and once married, still continued to play the game under a single account, which was registered in the husband’s name. He controlled the passwords and virtual currency in the account.
When the split came, the man refused to give his wife what she believed to be her share of the virtual property, leading her to file her petition. But a Beijing court rejected her request, declaring that the law can only decide such matters “when virtual assets are related to the real world, such as when they have been valued with real currencies.”
The Perils of Texts and Tweets for Couples Who Are Splitting Up
In addition to acquiring virtual goods, each of us leaves a huge digital trail when we interact on the Internet. Smartphones are terrific. They make it so easy for us to text, tweet and share photos. But their very spontaneity and ease may come to haunt us later in a divorce or separation. These communications capture our thoughts at a particular moment in time, but may not reflect our more considered views. No wonder, then, that an angry or spiteful text may end up being prize evidence in a divorce or custody battle
Indeed, divorce lawyers are seeing more and more cases where evidence is gathered from a smartphone. Just last week, the members of the American Academy of Matrimonial Lawyers (AAML) issued a press release reporting that its membership has seen a “sharp rise” in the number of divorce cases using evidence taken from smartphones and text messages. AAML says that text messages are the most common form of evidence being presented in divorce cases (62 percent of the time), followed by email (23 percent), and then phone numbers and call logs (13 percent).
AAML President Ken Altshuler has said, “As smartphones and text messaging become main sources of communication during the course of each day, there will inevitably be more and more evidence that an estranged spouse can collect.” Altshuler added, “Text messages can be particularly powerful forms of evidence during a divorce case, because they are written records of someone’s thoughts, actions and intentions.”
It’s apparently still rare to see people highlighting GPS data or Internet searches during divorce proceedings. And wiretapping is, of course, illegal—so that any evidence garnered from it cannot be used in divorce court, and engaging in it could lead to civil or criminal sanctions. For example, in California, the Family Code provides that interspousal wiretapping, via use of electronic devices such as tape recorders, is illegal.
The same is true for installing spyware on an ex’s computer: It is illegal unless you can convince a court to issue an order allowing otherwise. In the 2005 Florida case of O’Brien v. O’Brien, a wife installed spyware on a computer to monitor her husband’s online activity. He had begun playing dominoes with a woman he met through Yahoo!, and then commenced a relationship more intimate than playing an online game. Under the Florida Wiretap Act, the data she recovered from the spyware was not required to be excluded from evidence. The trial court still decided to exclude the data. The appellate court also found that the exclusion of the data was within the trial court’s discretion, and upheld the ruling.
What lessons can we learn, as divorce lawyers wade into the murky world of social networks and online games? The questions of how divorce courts will, and should, value or divide virtual property are tricky ones. As of yet, there are no fixed laws or norms in this area. Thus, those couples who have significant holdings in virtual property may want to include such property in pre-nuptial agreements, and to choose not to have a joint online presence, with shared accounts and the like. Moreover, we all need to be careful about what we communicate over our Smartphones, if we don’t want to see our embarrassing—and possibly incriminating—messages surface during a later divorce battle.