Do I Need a Digital Privacy Clause in My Prenup?

On behalf of The Marks Law Firm, L.L.C. posted in Prenuptial Agreements, Postnuptial Agreements, Digital Privacy Clauses on Friday, April 18, 2014

We have talked before about the dangers of social media, and how what you post on Facebook or text on your phone could come back to haunt you in a divorce or custody proceeding.   Recognizing these dangers, some lawyers have begun to insist on a “digital privacy” clause in prenuptial and postnuptial agreements.

Obviously, having access to your spouse’s digital records – emails, browsing history, tweets, texts, cellphone registry – could provide a significant advantage in a dissolution or custody proceeding.  If you have access to a compromising string of text messages, or an email trail of philandering, complete with photos, you potentially will have superior bargaining power in subsequent litigation, particularly if making these matters public in a divorce or custody proceeding would cause your spouse real embarrassment.  Given the choice between having the chance to use these materials in court and not doing so, why would a spouse agree in advance not to use them?

First, for the same reason the United States had and continues to have nuclear arms reduction agreements with other nuclear powers – elimination of the risk of mutual assured destruction.  If you have access to your spouse’s digital records, your spouse will seek access to your digital records.  As a marriage reaches a downturn, the incentive of each spouse to spy on the other increases, with the chance that by the time of divorce you each can and will blow the reputation of the other up in court.  Rather than have this type of marital nuclear winter, it would be much better for both sides to agree that certain methods of fighting in a future divorce are simply off limits because they have too much potential for long-term harm.

Second, marriages require trust and spouses require their own comfortable zone of privacy.  It will not help any marriage if one or both spouses feel the other may be spying on their every move, every text, or every post.  Simply asking for complete access may be enough to create an escalating cycle of suspicion.  Saying that we each have a digital zone to ourselves will create necessary breathing room for a healthy relationship.

Third, in the heat of the moment of litigation, we have less self-control and ability to resist temptation, not realizing that exposing certain secrets in a public way leaves a permanent record for the children to see.  A digital privacy clause helps both spouses in a moment of cooler reflection to realize that some matters simply should not see the light of day.

At the heart of the digital privacy clause lies the idea that over the course of a marriage any spouse may do something really stupid or make a mistake, but that one moment or act should not serve essentially as a means to extort a particular settlement in the event of divorce.  And the principal benefit of having a prenuptial agreement in the first place is to take away the conflict and uncertainty in the event of a divorce, so a digital privacy clause meshes well with the reason couples enter prenuptial and postnuptial agreements.

If you have questions about digital privacy clauses in a prenuptial or postnuptial agreement, contact us – we can help.