Everyone has heard of prenups protecting assets and wealth, but did you know they can also protect your privacy? Yes, you can actually include a confidentiality clause in your prenup which essentially prevents your future spouse (and you) from sharing private details about each other, everything from financial info to personal details and even the existence and contents of the prenup itself! Keep reading to explore what you need to know about confidentiality clauses in prenups.
What is a Confidentiality Clause?
A confidentiality clause is a provision in a prenuptial agreement that prohibits the disclosure of certain information to third parties (i.e., sharing info with anyone but the parties to the marriage). Confidentiality clauses can cover a wide range of topics, including finances, personal information, details about the marriage, details about the prenup, and more. The main reason for a confidentiality clause is to protect the privacy of the spouses involved in the marriage.
What Information is Covered by a Confidentiality Clause?
So, you may be wondering what exactly is covered by a confidentiality clause. Well, typically, what is covered will vary depending on the specific language included in your confidentiality clause. Every lawyer and prenup may have a different description of what confidential information is exactly. However, there are some very common types of info that are usually covered by most confidentiality clauses:
- Financial information, such as real estate information, bank account balances, and investment portfolios
- Business information, such as trade secrets and intellectual property
- Personal information, such as medical records and family histories
- Details about the marriage, such as the reason for a potential divorce or the terms of a custody agreement
- Details about the prenuptial agreement itself, such as the contents of the prenup and what terms are included
Enforcing a Confidentiality Clause
If one party violates a confidentiality clause in a prenuptial agreement, the other party can take legal action to enforce the clause. The exact consequences for violating a confidentiality clause will depend on the specific prenuptial agreement and the laws of the state. However, generally, to enforce a confidentiality clause in a prenup, a person will need to file for divorce and then ask a court to enforce the prenup.
Who Might Benefit from a Prenup Confidentiality Clause
While including a confidentiality clause isn’t required for a prenup, it can certainly be important, especially for some people. Let’s discuss what type of people may benefit the most from a confidentiality clause in their prenup:
High-profile individuals, such as celebs, politicians, public figures, and high-level business executives, may want to consider confidentiality clauses in their prenups. This can ensure that certain aspects of their lives are kept private, especially things like financial information or intimate details about their relationship (think: infidelity clauses, etc.).
Business owners (big or small) may have important details regarding their personal life or finances that they don’t want to be shared with the public. For example, this may include trade secrets, personal relationship details, equity percentages in businesses, and more.
People with particular occupations
Some people may have occupations that depend heavily on reputation. For example, doctors, lawyers, and CEOs. These types of careers typically require a certain reputation, and if something were to leak that wasn’t ideal (i.e., infidelity clause information, finances, relationship details, etc.), it could be damaging to their professional reputation.
People with unique assets
If someone owns a unique asset, such as a rare Picasso painting or some other unique item, they may want to keep such information private. Maybe they don’t want any press on it, or maybe they don’t want people to bombard them with purchase offers.
People who don’t want the details of their prenup shared with anyone
Sometimes, there are people who just want to keep their prenup private. Maybe they are embarrassed, or maybe they don’t want their parents to find out (for whatever reason). If that’s the case, a confidentiality clause can protect the sharing of the existence and contents of a prenup, too!
People who generally are private
Last but not least, if you’re just simply a private person who wants to protect your privacy, then a confidentiality clause may be for you.
Pros and Cons of Confidentiality Clauses
So, what are some of the advantages and disadvantages that come along with adding a confidentiality clause to your prenup? Let’s discuss.
- Can protect the privacy of the spouses involved
- Can protect spouses’ reputations (which may be especially important for public figures or business owners)
- Can prevent sensitive information from becoming public knowledge
- Can help to maintain a positive relationship between the parties
- Can help make sure the prenup itself stays private
- Can limit the ability of the spouses to seek support or advice from friends and family
- A breach of a confidentiality clause may be difficult to prove in court
- Confidentiality clauses may be difficult to enforce in some states
- Can be off-putting to some people
Tips for Negotiating a Confidentiality Clause
If you are considering adding a confidentiality clause to your prenup, but your partner doesn’t want one or isn’t sure about it, you may have to negotiate a little bit. Here are some tips for negotiating a confidentiality clause into your prenup:
- Explain your intentions and why you want this clause in the first place
- Actively listen to your partner on why they may be unsure about it or not want one
- Be specific about the types of information that will be covered by the clause (what type of information are you most concerned with protecting?)
- Consider compromising on another area of the prenup (in exchange for a confidentiality clause, you could agree to XYZ property division)
At the end of the day, if none of the above tips are working, you may want to consider seeking the advice of an attorney to see if they can assist in negotiations and other legal suggestions.
Frequently Asked Questions (FAQs) about confidentiality clauses in prenups
Q: Is a confidentiality clause necessary in a prenuptial agreement?
A: No, it’s up to the couple as to whether or not they want to include a confidentiality clause in their prenup. Again, it may be a good idea if either spouse is a public figure, is a business owner, or simply has sensitive information that they want to protect.
Q: Can we amend our prenup to add a confidentiality clause after we’re already married?
A: Generally, amendments to prenups are allowed, but you will need to follow the procedure for such laid out by your state. With that said, if both parties agree to add a confidentiality clause by amendment AFTER the wedding day, this should be allowed, depending on the state.
Q: What happens if my spouse is sharing private information and we have a confidentiality clause in our prenup?
A: Well, you have a few options: (1) You can try to work it out one-on-one without involving lawyers. You might simply ask your partner to stop (nicely) or ask them why they are doing it to understand the intentions (and get to a resolution faster). (2) If that doesn’t work, you may want to consider filing for divorce to enforce the prenup.
Whether you’re a famous actor, a doctor with a reputation to uphold, or simply a private person, a confidentiality clause may be for you. By including a confidentiality clause, both spouses can protect their privacy and prevent sensitive information from becoming public knowledge. You’ll need to agree to the exact terms of the confidentiality clause with your partner, so be sure to discuss this with them!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]