Family Law Newsletter Fall 2012: Should divorce lawyers ask clients about Sexting?

Thursday, November 08, 2012

Should divorce lawyers ask clients about Sexting?

By: Alan Pransky, Esq.

Sexting is a term used to describe “the act of sending sexually explicit messages or photographs, primarily between mobile phones.”  Wikipidea.  According to a study from the University of Texas Medical Branch, over 30% of all people between ages 18 and 25 have exchanged naked pictures. Although this practice is not limited to young people, it is fair to assume that a significant number of young married couples have exchanged naked pictures.    Some of these people are bound to get divorced.  What will they do with these naked pictures of their spouse in the heat of a highly contested divorce battle?

Some people try to hurt their spouse any way they can.  Naked pictures can create a unique opportunity to inflict pain on their partner.  Photos can be uploaded to the internet and once they are online it is impossible to remove them.    Knowing about the online posting may cause severe emotional distress to the victim of this posting.  Children of the spouse may discover the pictures and also have emotional distress.   A potential employer may find the pictures with a simple google search.  This may negatively affect the spouse's employment potential.

The harm that can be inflicted can be seen by looking at the many celebrities who have been exposed as their Sexting pictures have made their way to the internet.  Perhaps the most famous is Anthony Weiner who resigned as a congressman after his Sexting pictures were distributed.  The problems that the celebrities suffer may pale next to the prospect of not finding a job because a vengeful spouse posted pictures on the internet.

A divorce lawyer should anticipate problems of this nature and take action to prevent the harm.  I suggest that in an initial interview with a divorce client, include questions about having exchanged naked or semi-naked pictures with their spouse.  If the spouse has Sexting pictures then the lawyer should consider filing an ex-parte motion to restrain the distribution, posting online, uploading to the internet, transferring, or reproducing any pictures or video of the client in which the client is naked or partially naked.    A Sexting restraining order could protect your client from an action that could hurt your client for the rest of their life. 


Alan J. Pransky is a sole practitioner with an office in Dedham.  His practice concentrates in family law, real estate law, and litigation.  Mr. Pransky has been an adjunct professor at Newbury College, and has adjudicated in Moot Court Law Competitions and conducted many continuing education seminars.  Mr. Pransky graduated from Syracuse University College of Law and received a Bachelor of Arts Degree from the University of Massachusetts.

Mr. Pransky is admitted to practice in Massachusetts, the District Court for Massachusetts, the 1st Circuit Court of Appeals, and the U.S. Supreme Court.  He is on the Board of Directors of the Norfolk Law Library Foundation and is a member of the Massachusetts Bar Association, the Real Estate Bar Association of Massachusetts, and the American Civil Liberties Union.  Mr. Pransky recently chaired a program at MCLE entitled "Practicing Family Law in the Age of Facebook® & Computer Spying: MCLE Family Law Briefing".