June 3, 2014 -- A husband and wife are on a romantic vacation at a beach resort. The husband, thinking his wife looks hot, snaps a photo with his phone of her in her bathing suit and posts it to Facebook and Instagram. The wife, hating the way she looks in a bathing suit, finds out about the photo after her phone starts blowing up with notifications that she had been tagged and the comments are flooding in.
She demands he take down the photo. He'd better do it, too -- or he might have to fork over thousands of dollars.
In an age where we are constantly seeking instant gratification through our social media connections, more couples are seeking the so-called “social media prenup,” a written document, or often simply a discussion, that addresses what’s acceptable to share online about each other, sometimes with serious consequences.
“This is relatively new,” said Ann-Margaret Carrozza, a New York-based attorney who specializes in estate planning.
Carrozza has been doing prenuptial agreements for 10 years and only in recent months has she seen couples interested in including a social media clause. Carrozza said she does five so-called “love contracts,” or lifestyle provisions in prenups or post-nuptial agreements, per week and started offering social media clauses for those negotiations about two months ago. In that time, she said, about a third of her clients have been interested in having such a clause in writing.
“It’s a huge issue because we all know this stuff, once it’s out there, you can’t shake it,” Carrozza said. “It can be humiliating. It can be painful. ... It’s really no joke, and I expect this clause to become much more important with any of the other contracts.”
A typical social media clause will state that couples can’t post nude photos, embarrassing photos or photos or posts that are likely to harm a spouse’s professional reputation, Carrozza said. Her clients don’t pick and choose between what’s acceptable for Facebook versus Instagram, but do more of a blanket provision for all social media.
“There might be a bathing suit photo that might be particularly embarrassing,” Carrozza said. “Posting that would have to be cleared.”
With her clients, Carrozza said, the penalty for violating the social media clause has been monetary. The amount set depends on a person’s wealth, she said, but, for example, for someone living in New York City who makes below $5 million, Carrozza said, “the clause we’re using with it is $50,000 per episode,” meaning per post or per tweet.
“We want to be able to contractually limit the damage,” she said. “The damage is psychological, in the case of humiliating posts and tweets and pictures out there, and it’s economic because my career prospects are harmed.”
While not every couple thinks it’s necessary to have a love contract in writing, Carrozza said, when she brings it up to clients it can launch an important conversation.
“It helps a couples identify the areas where they are never going to compromise,” she said. “You want to establish boundaries, what will be off limits, what will be private ... what are the acceptable areas of your private lives that you want to post online.”
That’s what led Sheri Meyers, a Los Angeles-based relationship and family therapist, to draw up a social media prenup with her significant other, relationship coach Jonathon Aslay. Although they are not the typical couple, Meyers said the social media prenup arose because she said Aslay would use their relationship as a teaching example.
“For me, it was about privacy, what is for us and what is for the world ... so we needed that discussion,” Meyers said. “What Jonathon and I do is he’ll say, ‘This 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.”
Meyers, who is writing a book on the subject of social media and relationships, believes all couples, not just married couples, should have a conversation about social media boundaries.
“It’s really about avoiding betrayal a sense of betrayal,” she said. “Its’ not the clause, it’s the discussion. It’s having it spelled out to avoid problems later.”
“People resent the idea of: ‘What, you don’t trust me? What, we’re not on the same page already? Don’t you think I know what you want or don’t want? Don’t you think I know you?’” Meyers said. “A prenup isn't just anticipating the worst or planning for a breakup. This social media prenup is about how to have a better relationship ... by understanding where each other stand and showing how issues arise. ... It also then relaxes everybody, because you know what you’re going to get.”
But also, Meyers said, it’s important to have these conversations before social media can become a weapon to hurt each other, especially in the age of revenge porn websites.
“In this day and age, it’s really important, almost mandatory, to not assume and to lay it out,” Meyers said. “It’s one thing when you’re all lovely dovely. It’s another thing when you’re breaking up. ... it’s so easy, especially in anger, in ‘ex anger,’ to post things to get even.”
More than 80 percent of U.S. divorce attorneys say social networking in divorce proceedings is on the rise, according to the American Academy of Matrimonial Lawyers. Randy Kessler, an Atlanta-based divorce attorney and the former chair of the family law section of the American Bar Association, said social media is “the most frequent new issue” that comes up in divorce proceedings.
“If there is such thing as a general run-of-the-mill divorce case, it's in every case,” he said. “It is scary when you see the stuff we see.”
When a client is going through a divorce, Kessler said, he tells them to “take a cyber vacation.” Credibility, Kessler said, is a big issue in divorce because you want to prove to the judge you are trustworthy.
More often, judges are having to rule on whether or not social media is a factor in divorce cases and how significant its impact can be, Kessler said. Whether or not a negative tweet about an ex-spouse is grounds for forfeiting the other spouse’s right to alimony, or whether that spouse lied or cheated if he said he was going to Denver when his FourSquare account showed he checked into a place in Las Vegas, are examples of things that could come up.
“Nothing good comes of talking about your personal life when you’re going through a divorce,” he said. “Only bad things can happen by posting. You can get caught in lies. You forget to turn your location notification off. ... Someone else takes a picture of you, tags you.”
Social media clauses in prenups can help, Kessler said, because it “motivates behavior” in a certain way after a marriage has ended.
“I don’t think they hurt, but what’s interesting is they are untested,” he said. “[But] it makes you not want to take the risk.”