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Social Media and Prenuptial Agreements

social media clause in prenuptual agreement

Social media has become routine in our society and it is undeniable that social media usage has grown enormously over the last several years in family law. It is also true that prenuptial agreements are growing in utilization as they are being used by a broader scope of society than ever before.  That is why any person considering having a prenuptial agreement drafted should consider including a social media clause which has become more common.  

A prenuptial agreement is an agreement that is entered before the marriage and becomes effective on the date of marriage.  The agreement, in general terms, outlines how the parties will treat their existing and future property in the event of a subsequent divorce or separation. Additionally, it can be used to establish expectations during the marriage, during the separation and post dissolution.  

Social Media Clause in Prenuptial Agreements

A social media clause is just one area that many couples are attempting to address before an issue arises, rather than simply trusting it will work itself out once the issue is ripe. For example, the clause would address what and how information is shared whether it is positive, negative, insulting, embarrassing or includes flattering photos, images, or other content. I recommend keeping the clause as broad as possible to accommodate the rapidly growing technology because the technology of today will be outdated within 10 years. I also believe prior to marriage it is important for the parties to clearly understand what they each define as private and what is acceptable to be shared with others. Another component of a social media clause can include the ability to monitor the other spouse's social media activities.   I cannot tell you the number of reconnected FaceBook relationships that have led to a spouse sitting in my office wanting a divorce. 

I have previously posted an article addressing the importance of monitoring or terminating your social media presence once a dissolution action is initiated. However, if considered and addressed in advance through the social media clause, it can prevent some of the issues that often arise in a dissolution action and save both parties' time, money and hurt feelings.

The Perils of Revenge Porn

Another popular divorce topic is revenge porn, whereby an ex-partner posts nude photos of the other without consent. There is a substantial debate regarding the ability to fight this type of posting and some states have added specific legislation to criminalize this type of behavior. This can be specifically addressed in a social media clause giving power to the person in the photo to force the photos to be removed from a web site and potentially give that person sanctions for the event even occurring.  If your relationship could include allowing your partner to take these type of photos or recording a special video you should address the materials in advance rather than finding it posted for the world to see. 

In the event you are considering a prenuptial agreement, I encourage you to move forward. However, I also want you to consider thinking outside the box if you are considering a social media clause because technology is advancing faster than ever and the technology of tomorrow likely has not even been considered today.  So, keep the definition of social media board and allow for it to include the social media of tomorrow. 


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.