Digital Privacy Clauses in Prenuptial Agreements

From Our “Ask a Question” Mailbag: Prenup Digital Privacy Clauses

Most Recently Updated August 9, 2018.

“I love my fiance, but I recognize that our marriage might not last forever.  My parents divorced and used all means possible to make each other look bad.  I have heard about Digital Privacy Clauses for Prenuptial Agreements.  What are the Advantages of a Digital Privacy Clause in our Prenup?”

Prenup Digital Privacy Clauses

Prenup Digital Privacy Clauses

The way we communicate changes daily.  We use Facebook, Twitter, LinkedIn, Snapshot and dozens of other applications and expose ourselves to the world.  These marvelous tools allow us to keep track of our friends. But, these same tools have created bottomless wells of data for divorce attorneys.  At one time the best an attorney could hope for was a carelessly misplaced letter or photo.  Now, digital media has created oceans of ammunition waiting to be mined by an aggressive divorce attorney.

In general, you enter a Prenuptial Agreement so that if your marriage ends that process can be as painless and inexpensive as possible. Traditionally, the Prenup addresses alimony and the division of assets. But, realistically at the end of a marriage, one or both people might find parting shots irresistible.  The modern world is forcing us to craft new and creative clauses in our Prenuptial Agreements to defuse these likely disputes. An example of this developing legal area is the Digital Privacy Clause.

What is a Digital Privacy Clause?

A Digital Privacy Clause in a Prenuptial Agreement prevents either spouse from accessing and using the other spouse’s electronic media.  The clause can be limited to use of such media in a divorce or can be expanded to include rules to follow during the marriage.

Why Have Access to a Spouse’s Electronic Media?

Even with a detailed Prenuptial Agreement, there might be grey areas over ownership of assets.  Further, custody and visitation of children can be affected by the court’s perception of a parent’s stability and moral fiber.  Logically, your divorce attorney wants to put on the best case and will want to mine your spouse’s emails, tweets and browser history for evidence that can further your case.  A skilled lawyer can turn an email sent in anger or an embarrassing photo shared with friends into a powerful negotiating tool.  In the heat of the battle, the chance of finding this evidence can be too tempting to resist.

If Your Prenup Envisions a Clean Break, Why It Might Be Better for Neither Spouse to Have Access to each other’s Electronic Media.

Consider why you have your Prenup Attorney draft your Prenuptial Agreement.  If your goal is to avoid protracted litigation and to facilitate a quick end to a failed marriage, then taking a weapon out of your own hands (and your spouse’s) is a good idea.  There might be damning evidence out there, but it might be best left where it is.

Why It Might Be Better for Your Marriage to Not Have Access to Your Spouse’s Electronic Media.

Some clauses include rules for spouses during the marriage.  Both spouses can recognize the other’s right to private communications.  Just like communicating about financial obligations, verifying and documenting privacy rights can lead to healthy conversations over matters that might otherwise fester. 

Why It Might Be Better for Your Children for Neither Parent to Have The Right to See Each Other’s Digital History.

Divorce leaves casualties.  Recognize that a quick “boring” divorce might be best for everyone including the children. Mining digital data and exposing the other spouse’s lapses in judgment might feel right at the time but might also leave lasting scars with children.   A Digital Privacy Clause disarms both spouses removing the temptation of exposing the other’s mistakes to the world.

Realize Now That if the Marriage Ends You Might Not Make the Best Decisions For Yourself or Your Children. Disarming Yourself Now Might Be The Best Decision.

Realistic people recognize a Prenuptial Agreement’s value. Should your marriage partnership not work out, a Prenup allows you to map out the most painless exit strategy.  Knowing that you might be angry and not thinking clearly during your divorce, a Digital Privacy Clause may make that process less conflictual.

More Planning Questions?

Prenup Digital Privacy Clauses is only a piece of the Estate Planning process. By all means, if you want to learn more, please read my more detailed article, Estate Planning Everything You Need to Know.

In Conclusion: Prenup Digital Privacy Clauses

I hope that this article was helpful in explaining Prenup Digital Privacy Clauses. Further, I included links to even more detailed information on my website so you can learn more. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Estate Planning lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced estate planning lawyers.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!

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