Jaburg Wilk


Sexual Materials and Divorce

Categories: Family Law, Article

Dealing with divorce and erotic material

The world of divorce can be a messy and scary place. One area that is problematic is when a couple, during happier times, engaged in filming or photographing nude or sexual acts, which were done merely to illustrate the couples love for one another.  However, once the love is gone and a divorce is pending, possession and ownership of the materials can become a nasty fight. 

I recently read an article in The Huffington Post by Carina Kolodny who was reporting on a recent decision by a German Court dealing with the issue of "revenge porn", which happens post-breakup. One partner still has possession of the video or photographs of the other partner either nude or performing a sexual act that are subsequently released on the internet. It is important to note that the video or photographs were obtained originally with the person's consent and the person was over 18 years old.  In fact, in my experience, the video or photographs may have been taken at the request of the person now demanding the materials be returned. 

According to the article, the German Court ruled that the woman's right to the photos supersedes the man's (photographer's) ownership rights. In fact, the Court stated that the man was obligated to delete the photographs once the woman requested that they be deleted. 

I will admit that the laws in the United States regarding this issue are weak at best, but this is certainly something that a person should consider before he or she agrees to engage is such behavior.  

Additionally, if a person does engage in this behavior, he or she should know what is being done and who is going to control the images in the future.  In my experience, in family court, I have been successful in getting the photographs back, but I can never confirm to the client that all of the original photos were obtained and that the other side did not keep a copy. 

The best advice I can give in this area is if you are going to engage in this type of activity, make sure you know what you are doing and protect yourself in the event the relationship does not last forever. 

About the author: Jason B. Castle is a Partner at the Phoenix law firm of Jaburg & Wilk. He is the President of the Arizona Chapter of the Association of Family and Conciliation Courts, member of the State Bar of Arizona, and a member of the Maricopa County Bar Association, where he chaired the Family Law Section and Legislative Committee. He has expertise in child custody and Decision Making Authority. More recently he was named a Southwest Super Lawyer Rising Star.

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.