This article in the Mail On-Line talks about the rise in social media prenuptial agreements:
“The typical social media clause states that couples can't post nude or embarrassing photos that might harm their significant other's reputation
The penalty is usually monetary, with well-to-do couples in New York typically paying up to $50,000 each time they break the clause”
I'm sure everyone gets the no posting of nude photos part of the clause. But I question the "embarrassing photos that might harm their significant other's reputation" part of it. What does that mean?
One of the couple interviewed stated: 'What Jonathon and I do is he'll say, "This is an SMP [social media prenup] moment. Is this OK [to post]? Is this crossing the line?" It's two sentences, versus a paragraph or an hour [discussion]. It's not a big deal, anymore.'
Are we at a point in our society that we need to ask permission to post a photo on Facebook? Does that mean it must be embarrassing at the time the photo was taken or when it is posted to be actionable? What happens if it is posted and becomes embarrassing? Would that be actionable?
What if you met your wife in grad school. At the time she was a gun enthusiast. You take a photo at a shooting range during a weekend date. 15 years later, she is an activist and lobbyist against all firearms. Her hobby as a student went unnoticed. You post the photo from the shooting range on Facebook. Did you violate the "embarrassing photos that might harm their significant other's reputation" clause? What if her organization let her go ... is it a violation then?
What about the penalty? The article notes "The penalty is usually monetary, with well-to-do couples in New York typically paying up to $50,000 each time they break the clause."
What about the less well-to-do couples? What about a mother who is marrying for a second time and all she has and wants to protect her IRA for her child from her first marriage? What could a couple in this earnings bracket expect to recover is a social media clause is added to the prenup and is violated? Or how about the vindictive spouse who can afford the penalty and violates the agreement for spite and offers the penalty?
I'm not sure there are answers yet. These are new and serious discussions attorneys will need to start having with their clients. In this age of immediate electronic communications and past scandalous post, the points in the article seem to be valid.
What will be the end result? My concern is the prenup agreement will increase in cost, it may end up being tough to enforce, and it creates another battle field for divorcing spouses to fight. Don't get me wrong, it needs to be discuss. I'm just sorry we are at the point it does.