Can a ?? Affect Divorce Proceedings? It Might.

Let’s try an experiment together. Decipher this sentence:

 ⚮

If you looked at these symbols and thought, “I have no idea what that means,” you are not alone. But if you are a divorce attorney looking at those symbols, it may be your job to know. More and more, emojis are popping up in court documents, and some are changing the outcomes of cases.

A recent piece in Bloomberg Law posited that attorneys must “increase their visual literacy to understand how to apply literal meanings to emojis and other digital representations of language.” According to the author, more than 130 cases in 2020 referenced these little pictograms, which is 25% more than appeared in cases in 2019, which was double what appeared in 2018.

In other words, emojis are here to stay, and attorneys must do their best to interpret them in a way that benefits their clients.

Examples of emojis influencing the outcome of cases

In 2019, CNN reported that “An emoji with Xs for eyes – also known as the ‘dizzy face emoji’ – was an issue in a 2017 murder case in Massachusetts. Prosecutors argued that the emoji showed that an individual who received it knew ‘something was happening.’”

In 2018, the Wall Street Journal discussed a defamation case involving an accusation of corruption by a public official where the “:P” emoticon “is used to represent a face with its tongue sticking out to denote a joke or sarcasm,” and as such, per the Michigan Court of Appeals, the accusation was not meant seriously.

In 2015, per Bloomberg Law, “the U.S. Supreme Court overturned the conviction of a Pennsylvania man found guilty of threatening his wife via Facebook. The court agreed with the defendant who claimed that an emoji in one post meant his threats of harm against his ex-wife weren’t serious.”

Could a family law case be affected by emojis?

Potentially, yes – it could, as family law cases have often been affected by texts and emails, too. Does a broken heart indicate a wish for divorce or a plea for reconciliation? Does a shrug emoji indicate confusion or indifference to proposed negotiations? Does that flying stack of dollar bills indicate that divorce is expensive, or that one spouse is wasting assets on purpose? These questions may prompt some to insert their own eye-rolling emojis, but a Court’s interpretation of a face without a mouth () could mean the difference between a getting a temporary restraining order or not getting one.

How can attorneys increase their visual literacy?

Per Bloomberg, there are specific questions that attorneys should be asking when they see emojis in their clients’ communications:

• What do I see in the image? Can I put a name to what I see?
• What does my client think it means? Why?
• What do counterparties and third parties think it means? Why?
• How does context apply?

Attorneys should be asking these questions regarding any communication, of course, between their clients and their clients’ spouses or partners, just as they would with any other form of written communication. Just as initialisms and acronyms such as “LOL” and “OMG” have meanings, so too do emoticons.

Berkman Bottger New & Schein LLP represents clients in matrimonial law issues. To learn more about our services, please call us at (212) 466-6015 or fill out our contact form to reserve a consultation. Proudly serving Manhattan, Westchester, and Bergen County, NJ.