In case you needed further proof that social media is deeply embedded in our lives, now comes the news that some couples preparing pre-nuptial agreements are including social media clauses in them. These clauses regulate what your spouse can and cannot post on Facebook, Twitter, or Instagram.
Say your spouse takes a picture of you in a bathing suit, and posts it to his or her Facebook account. You hate the picture and your friends start making online comments you do not like. If you had a pre-nup with a social media clause, you could force your spouse to remove that picture, or pay contract damages in a lawsuit. Ahhh, love.
Before you start thinking this is the end of the civilized world as we know it, this news has to be put in some practical context. First of all, very few couples get pre-nups. It is not the “norm” for married couples. And those that do get pre-ups are usually trying to protect assets they bring in to the marriage. If you have a couple of million bucks before you get married, it makes sense to protect it from a possible future divorce decree.
Second of all, this news is coming out of New York law firms. That means that social media clauses in pre-nups are likely being used by the super rich and super powerful, not average Joes or Janes. If you are a celebrity, and make your living with your image, it may make sense to include such a clause to prevent your spouse from posting an unflattering photo of you for the world to see. It would especially make sense to prevent angry comments or posting nasty allegations in a break up situation, which is where pre-nups usually come into play.
I am unaware of any court that has litigated the validity of a social media clause in a pre-nuptial agreement. I am sure it will be coming at some point. But it will probably be a celebrity divorce playing out in New York or L.A., not in Southern Maryland.
If you think you may need a pre-nuptial agreement (with or without social media clauses), contact our firm and ask for an appointment with me. I will be glad to explore it with you, and prepare one if you need it.