Social Media Clauses in Pre-Nups, Custody Agreements, and Orders of Protection

Social media clauses can be incorporated into prenuptial and post-nuptial agreements, child custody agreements and orders of protection from domestic violence. Damaging internet posts on social media sites can be legally prohibited. It is important to protect one’s reputation online in an era where employers, business associates, government agencies, academic institutions, friends, and future intimate partners are checking and tracing digital footprints.

Social media clauses in prenuptial and post-nuptial agreements
Social media clauses can prevent former spouses from posting items online that would disparage, harm, negatively affect the other former spouse’s image, or have any negative effect on a former spouse’s business, school, or career prospects. In these agreements, each spouse agrees that derogatory online posts will not be disseminated without prior written and/or electronic consent. Information that spouses agree not to share online is called “Protected Information.” Types of Protected Information include, but are not limited to, the other spouse’s personal and business activities, legal and financial affairs, physical health, and sexual activities. Such a clause can also prohibit the electronic dissemination of photographs, videos, emails or texts about or from the other former spouse.

An example of a social media clause in a prenuptial agreement is as follows:

All information that may in any way disparage, harm, cause to lower the other’s self-esteem, negatively affect the other’s public image, or have any negative effect on the other person’s business, school, or career prospects will be deemed Private and Confidential Information (HEREIN AFTER “PROTECTED INFORMATION”) that will not be disseminated without prior written and/or electronic consent. In each instance, the parties will not: (a) disclose, directly or indirectly, or cause or induce the disclosure of, any information, pictures, posts, comments; (b) remove, reproduce, summarize, copy, excerpt, distribute, sell, exploit or utilize in any manner whatsoever any PROTECTED INFORMATION that has been provided to them by the other party.

PROTECTED INFORMATION shall include, but not be limited to, information concerning the other party’s personal and business activities; legal and financial affairs; physical health; sexual activities; philosophical, spiritual, or other views; characteristics; whereabouts; any and all photographs, likenesses, tapes, films, videos, or audio and other recordings (including negatives, prints, or copies thereof) of or by the other party; and any emails, texts, or other forms of written communication about or from the other party.

Under no circumstances will the parties divulge any PROTECTED INFORMATION by any means or through any media whatsoever, including, but not limited to, through photographs, video, blogging, texting, “Tweeting”, “tagging”, or posting any such PROTECTED INFORMATION on any social media site, service, or platform, including but not limited to Facebook, Instagram, Twitter, LinkedIn. All PROTECTED INFORMATION shall remain the other party’s sole and exclusive property.

Social media clauses in custody agreements
The posting of children’s photos, videos with the children on YouTube, and/or even live videochatting/videotaping of children during access time with one parent has become a concern of parents in custody disputes as well as the courts and attorneys for children. A parent may want to share live videos and photos of a child with distant friends and family. However, when there is a lack of trust between the parents, a lack of knowledge over who new acquaintances are, as well as an increased use of social media for dating and socializing during a divorce, social media clauses in a custody agreement or court order may be appropriate. It may be appropriate simply because many pedophiles collect photos and information about children through the internet. The social media clauses concerning the protection of children can be directed at one parent or neutrally applied to both parents in the best interests of the child.

An example of a social media clause in a custody agreement is the following:

The parents agree not to use any social media involving the child during parenting time. The parent will not post pictures of the child on any social media sites without the other parent’s approval and access to the postings. These sites include, but are not limited to, Facebook, WhatsApp, and Snapchat.

A parent’s violation of the above conditions shall permit the other parent to immediately file to limit access and request supervised access with the child. A parent’s violation of said agreement’s social media clause shall serve as a change of circumstances for the parent returning to court for a modification.

Social media clauses in Orders of Protection
As discussed in my previous blog on Divorce in the Digital Age, cyber-attacks are not just against corporations and countries. One may be a victim of cyber abuse from a spouse or intimate partner. One in four stalking victims have been cyber-stalked. Cyber abuse includes, but is not limited to threats, name-calling, and derogatory remarks in text messages, e-mails, and postings on social media sites. Incessant digital/electronic communication, including numerous hang-up calls, or persistent voicemails and text messages can be considered harassment by a family or criminal court. Computer hacking permits one to gain access to private computer files. Spyware allows one to take snapshots of another’s computer through remote access. Creating false profiles and posts, changing passwords to delete critical e-mails, sending fraudulent e-mails, interception of e-mails, distributing photos, videos, personal information, and damaging one’s public image, or employment through the internet occur in vindictive matrimonial matters. There are a number of social networking sites, including “Formspring”, “Intellius”, and “MySocial 24×7” that are used for GPS and camera surveillance. It is essential not only to improve cyber security, but also to seek orders of protection against a perpetrator of cyber abuse.

When social media is used as a weapon, an Order of Protection can now contain language ordering one party to cease any type of communication with another party through social media. Specifically, an Order of Protection may order one party to refrain from communication or other contact by mail, telephone, email, voicemail, or other electronic means with the other party, including communication through social media.

In conclusion, social media clauses can also contain monetary penalties. Currently, when one commences an action for divorce in New York State, there are courts orders in place to prohibit the transfer of assets and destruction of computer files; perhaps the automatic orders should also contain a social media clause against disparagement of the other spouse and a children’s bill of rights.

About sherridonovan

Matrimonial & Family Attorney. Mediator and Family Coordinator.
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1 Response to Social Media Clauses in Pre-Nups, Custody Agreements, and Orders of Protection

  1. Alison Keil says:

    great article and reminder that our boilerplate agreements must be continuously revised to accommodate the media age.

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