First comes love, then comes marriage, the baby carriage, and, for many Americans, divorce. Even if a couple doesn’t have an estate to divvy, family matter lawyers are reporting emerging trends that may have couples wishing they had signed prenup.
As the director of family law at Rose Law Group, Kaine Fisher has prepared many high-profile pre- and post-nuptial agreements. Some have had unusual provisions, such as what happens if a spouse transmits a sexually transmitted disease or a clause that liquidates damages for infidelity. However, there’s a new trend he and other local lawyers are touting — social media clauses.
Facebook, Twitter and Instagram are the first places millions of people turn to share their thoughts, photos and lives. It’s where professional and personal relationships grow, thrive and, sometimes, end. And, when the inevitable happens, there’s a chance the scorned and burned feelings will turn up on social media platforms in the form of private or unflattering information or photos about the other person. This is where the expertise and intervention of attorneys is rapidly required.
“Over the past couple of years, I have noticed an explosion of requests by clients wanting to include what is more affectionately known as a ‘social media clause’ in their pre- and post-nuptial agreements,” Fisher says. “At the onset of a marriage, such provisions are effective in setting relationship boundaries. However, at the end of one, these provisions are are typically used as swords to achieve greater financial gain.”
The American Academy of Matrimonial Lawyers reported more than 80 percent of U.S. divorce attorneys say social networking is a rising topic in divorce proceedings. Social media has been a staple in divorce proceedings since MySpace was introduced in 2003, but Norma Izzo Milner, a litigator focusing in the areas of alternative dispute resolution, family law and domestic relations with Jennings, Strouss and Salmon Law Firm in Phoenix, is still surprised by how few clients still aren’t considering social media prenups.
“Once I provide some basic legal information about how social media can play a part in or impact either a relationship or the ending of one, they tend to take precautions and limit their social media activity,” she says.
People just can’t seem to help themselves, Fisher says, adding that they also don’t always have control over what hits the web.
“A jaded ex-girlfriend or a careless spouse can expose, either intentionally or intentionally, private photographs or videos of you that you never wanted anyone to see,” he says.
“The reality is, most people connect through cyber space and report daily activities from what they are eating to how they are feeling. This can be a dangerous outlet for people facing the emotional challenges of a divorce or legal separation,” Milner says.
The amount of couples who enter into prenuptial agreements, despite a divorce rate of 3.6 per 1,000 people, is surprisingly low, says Milner. The two leading causes of getting a prenup, she says, is to protect an estate or to prevent the difficulty and costs of a divorce, based on previous experience.
“I find it surprising that the majority of people spend a large percentage of their daily time engaged in some form of social media, but do not think about how it might impact their lives long-term,” she says. “I generally have to bring the topic up for discussion with my clients.”
Social media prenups can be drafted as inclusive of existing and future platforms. In the event of being blocked from an ex’s social media pages, Milner says couples can include an term that enables access to personalized web content for a period of time after separation.
The family law group at Burch & Cracchiolo hasn’t used a social media clause in any of the prenups it has drafted, but recognizes it as something that’s on the horizon, says Marketing and Client Development Manager Chris Long.
Chris Ingle, an attorney at Rose Law Group who specializes in online defamation and protection of intellectual property, has not encountered a social media prenuptial case outside of the new articles and online buzz.
“I have to say that if somebody approached me with that idea, I’d recommend against that very strongly,” he says.
It’s a matter of a dispute escalating into a court battle that becomes public record and costs “a small fortune,” he says, adding, “It takes what started out as a disagreement and turns it into a full-fledged litigation war. I don’t think that’s in everyone’s best interest.”
Ingle recommends couples who are going their separate ways to write a non-disparagement clause, which promises couples won’t go out of their way to say anything bad about the other person or have anyone do that on their behalf.
It’s not necessarily the words that have many people preoccupied — there are images and the revenge porn industry to consider.
“If you’re going to let somebody take those photos and videos, you have to trust them implicitly,” says Ingle. “Once it gets out there (online), it’s difficult (to reverse).”
Some options, particularly for people whose images or videos are posted on a website by a third party (presumably an ex), include filing for copyright of the footage. It’s “cheap and easy,” says Ingle, to get a copyright. Unless your significant other challenges the claim, someone can generally submit a Digital Millennium Copyright Act (DMCA) request to the hosting website and get the photo or video removed.
For couples who drafted their prenups pre-Zuckerberg, who, by the way, had a relationship agreement drafted up before his marriage to Priscilla Chan that required 100 minutes of alone time away from Facebook’s headquarters, Milner still suggests considering a dialog about social media in the relationship and, potentially, a post-nuptial agreement.
“It’s never too late to have the discussion and spell out expectations and healthy boundaries to avoid future problems,” she says.
