Digital Privacy Clauses in Prenuptial Agreements

What you say and do on social media matters. There is a common misconception that social media platforms are absent from any consequences because posts are rooted in cyberspace, not reality. But the truth is that social media posts are being brought to light and used as evidence more and more often in courtroom settings, including family law and divorce courts.

Digital Privacy Clauses to the Rescue

The last thing you want to learn is that your divorce has gone sideways because you overshared on your Facebook wall. But this can happen to anyone because courts have consistently held that anything you post on a social media account is considered within the public domain, so your spouse or their lawyer can go look at your posts and potentially use them against you.

To make it more difficult to turn social media posts into courtroom weapons, family law attorneys have gotten creative with legal solutions. Digital privacy clauses in prenuptial agreements are a new trend to address this problem. In short, a digital privacy clause will state that neither spouse can access the other’s social media accounts without their permission or for use in any future divorce proceedings.

But digital privacy clauses don’t have to be limited only to social media posts. They can be used to secure all types of electronic communications and data.

A digital privacy clause can be used to keep the following private:

• Text logs
• Emails
• Photographs saved to a cloud
• Smartphone call records

Creating a Valid Digital Privacy Clause

Keep in mind that if your digital privacy clause is vague or overgeneralized when describing restrictions and expectations, it will be more difficult for it to stand up to a court’s scrutiny. Providing specific details is preferred and shows that you and your spouse were clearly aware of the clause’s purpose when it was created.

When making a digital privacy clause for a prenuptial or postnuptial agreement, consider whether:

• Particular topics can or cannot be discussed in social media posts
• Pictures can be posted without approval from both parties
• Outside parties can gain access to your private accounts
• Any social media apps should be prohibited and why

However, be careful when creating a digital privacy clause. It is not always desirable be over-controlling nor allow your spouse to be. If a digital privacy clause is created purely to limit the actions and decisions of a spouse, and not to prevent heightened conflicts in the case of a divorce, then you may find that it does more harm than good to your relationship.

Working with a trusted and experienced family law attorney is highly recommended. With the guidance of an attorney, you and your spouse can work together to create a prenuptial with a digital privacy clause that respects everyone’s interests, wellbeing, and social lives while also minimizing potential conflicts in a divorce.

Long Islanders who need help with sensitive family law issues and topics like prenuptial agreements and digital privacy clauses can count on Wisselman, Harounian & Associates. Our attorneys are here to provide their guidance when you need it the most, just as we have been doing for locals since 1976. Call (516) 773-8300 or contact us online to learn more about our services and your options.