It turns out social media prenuptial agreements are not just for high-profile couples and celebrities. While prenuptial agreements address the usual topics of alimony, finances, and property division, more couples are looking to contract for the types of images and information their spouses can share in the event they divorce.
In fact, the American Academy of Matrimonial Lawyers recently found that over 80% of divorce attorneys believe that divorce proceedings involving social media-related issues are on the rise. In our era of TikTok and Instagram Influencers, what exactly are social media clauses and how can they be useful in a prenup?
What’s in them?
These types of clauses are very similar to what they sound like – providing means for someone seeking to prevent and protect their spouse’s social media use in the event of divorce. Specifically, these clauses can include parameters like
(1) prior approval for posts including your spouse,
(2) how to handle divorce announcements,
(3) posts and/or photos that may implicate children,
(4) public and/or private accounts,
(5) the use of social media to harass and embarrass a spouse during divorce (including but not limited to the use of nudes and/or otherwise compromising photos).
It’s important to note that these clauses can be made even more specific and tailored to a given couple’s needs. Contentious divorce proceedings can leave emotions running high and angry parties may take to their social media platforms to take it out on their spouse.
Take the recent Kimye (Kim Kardashian and Kanye West) debacle airing the family’s dirty laundry via Instagram for example. These prenuptial clauses work to prevent social media assaults just like these, and can even provide monetary punishments if a spouse breaches the agreement. It is important that these clauses are drafted as specifically and deliberately as possible so there is no confusion as to each spouse’s expectations.
How to Enforce Them.
Just because you have a social media clause in your prenuptial agreement does not mean your spouse won’t violate it. This is where matters can be tricky, especially because the enforceability of these clauses varies from state to state.
Why? Because social media clauses can read similarly to “lifestyle clauses” and may therefore be outside the scope of the strictly-financial nature of prenuptial agreements.
For example, courts in states like Minnesota, Louisiana, and Georgia lean against enforcing these clauses in prenups, while states like Massachusetts and New Jersey are more likely to uphold them. In the states where prenuptial clauses on social media would be deemed valid, prevailing in court against a spouse who breached is pretty cut and dry.
Photos and posts that are identifiable, time-stamped and displayed for the world to see are easy to scrounge up as evidence, making the inevitable legal “grey areas” a little more clear. You just need to make sure that the clause both spouses agree to is as specific, fair and reasonable as possible
Penalties for Breach.
You can contract for penalties as harsh or as easy as you want them to be with these clauses. The stakes can be even higher where a spouse’s name, image, and likeness or personal business brand is involved.
One Connecticut-based law firm reported clients with a social media clause in their prenuptial agreement requiring upwards of $50,000 in damages for every social media post in violation of the agreement. Usually, this number will come down to the relative wealth of the couple and what they can ultimately agree upon.
Want to Learn More?
Social media clauses may not be for every couple or every prenup, but a verbal discussion about these parameters with your spouse can help reach this decision. It is important that you seek assistance in your state from a skilled attorney for clauses like these so that you can leverage them accordingly.
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