To Post or Not to Post, that is the Question

A prenuptial agreement is designed to give parties control over the financial aspects of their lives in the event the marriage unfortunately ends in divorce. In addition to divorce situations, prenuptial agreements also give couples control over their rights to pass assets at death – allowing a party to disinherit a spouse or obligating a spouse to leave certain assets to their partner. Prenuptial agreements can also place restrictions and obligations on financial behavior during a marriage, for example, by requiring the filing of joint income tax returns and allocating the tax obligations, by requiring a party to obtain and maintain health or life insurance benefiting the other party, and even getting into the nitty gritty of who will pay the mortgage or buy the groceries. But what about control over other behavior during a marriage?

One thing high profile couples are now looking to include in prenuptial agreements are restrictions on social media posts, with financial fines imposed if a party breaches those provisions. The restrictions on social media posting are designed to contractually prohibit a spouse from making private arguments public, from sharing embarrassing photos, and from disparaging their spouse during a marriage and after divorce. With the world watching, literally, it can be truly damaging to someone’s reputation when the “dirty laundry” of marital discord is trumpeted across Facebook, Twitter, Instagram and other social media platforms.  Not only can celebrities feel the sting of unwanted publicity, but everyone is vulnerable to losing clients, business or even friendships based upon unflattering or critical social media posts.

Prohibiting all social media posting would be overly restrictive and might be deemed against public policy, and thus unenforceable. Provisions prohibiting “embarrassing” photos from being posted online is subject to far too much debate over what is embarrassing or not. To make prenuptial agreement terms for social media posting useful and enforceable, the language used in the agreement must be carefully worded and limited in scope. For example, prohibiting the posting of any nude photos on social media (and also requiring that they be destroyed in the event of divorce) is clear and reasonable.

In this world of making all things private completely public by sharing on social media, sometimes trust is not enough and a contract is warranted.