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Why Social Media Clauses All The Rage?

Social Media Clauses
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Social media clauses are now common in a lot of divorce proceedings. Images and posts from individual Facebook, Instagram and Twitter accounts. They are often used against soon-to-be ex-spouses for everything from alimony establishment to child custody agreements.

But what if there was a way to protect your reputation and your finances by controlling the way social media can be used against you by a spouse?

So-called “social media clauses” in prenuptial agreements are popping up across the country, particularly when it comes to high-profile marriages. There are two purposes to these clauses. The first is to prevent a spouse from posting something embarrassing or potentially financially harmful during the marriage. And the second is to provide privacy protections in the event of a divorce.

However, these clauses are not completely straightforward – at least not from a legal standpoint. Attorney Brett Snider writes that in general, prenuptial agreements are meant to protect financial assets only. Not to create rules about behavior within the marriage. In fact, he writes, the inclusion of petty arrangements in a prenuptial agreement. This can cause the entire thing to be invalid, and not hold up in court.

But are there detrimental financial ramifications to actions on social media, either during or following the end of a marriage?

There could be, according to some matrimonial attorneys, like Christian Aaron Pickney, Esq., who practices on Long Island, NY. A photo that compromises the career of a spouse or ex-spouse, for example, could be considered financially harmful. And could be grounds for a financial punishment as outlined in a prenuptial agreement.

“These discussions are in the beginning stages, but will become better defined as they are put into practice,” he said.

What People Are Trying to Control?

Some of the things people are trying to control with the clauses:

1- Use of private images

A future spouse may outline specifications for posting photos on social media outlets during the marriage, especially ones that could have a negative career impact. In terms of divorce, a spouse may agree not to share private photos during or following the dissolution of the marriage. These post-marriage image overshares could range from potentially disparaging ones involving alcohol, to a host of others that paint the ex-spouse in an embarrassing or irresponsible light.

2- Potentially harmful comments

How many times have you seen a marital fight unfold on Facebook? Only to see the couple posing happily for double-selfies a few days later? Some social media clauses outline that a person cannot discuss anything negative or personal on social media outlets during the marriage. Social media posts about divorce, custody battles or private discussions surrounding divorce litigation can be expressly forbidden in a prenuptial agreement, too. Both cases fall into a gray area, though.

“Telling a person that he or she cannot express an opinion is a potential violation of First Amendment rights,” said Pickney.

What Will a Violation Cost You?

Like other prenuptial clauses, social media ones general come with a price tag attached. Since there are no actual laws that address these infractions, the cost precedent is still in flux. One number that has been floated is a fine of $50,000 per social media violation for a person who makes under $5 million per year.

So… do you REALLY need a social media prenup?

It’s really too soon to tell. With little legal precedent, and lawyers concerned about First Amendment violations, pushing for a social media clause in a prenuptial agreement could end up backfiring in the form of an invalid, or even illegal, contract down the road. Simply putting something in a prenuptial agreement does not mean that it will hold up in court later on.

“In general, I think there’s almost an unrealistic expectation that we can control images and conversations that are basically in the public domain through social media,” said Pickney.

“Unless you can prove that someone directly hurt you, it’s a tough space.”

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