Prenups in the age of Tik Tok and influencers are a little different than those from generations past. Of course, we all know the pros and cons of social media. A lot of followers can bring millions and an embarrassing post can potentially end your career. With so much at stake with social media these days, it’s no wonder that the subject crept into the world of prenups! So how can prenups help you here? Stay tuned to find out!
What is a Social Media Provision?
Social media provisions are exactly what they sound like, provisions in which couples lay ground rules for social media use during and after marriage. Violating these provisions can come with a hefty blow to your bank account. These provisions are similar to “lifestyle clauses” which are generally non-financial in nature, meaning that the subject – say infidelity, for example –is not a financial matter (check out more on lifestyle clauses here). This is in contrast to most prenup provisions, such as alimony and property division provisions, which are financial in nature.
Social media provisions can include parameters for posting online and can help to protect the privacy of the marriage. During marriage, perhaps one spouse doesn’t want unflattering photos posted so the prenup can require approval prior to any posting of joint photos. This may seem overboard but consider people who monetize their online presence based on a certain “image” or lifestyle.
While these provisions can definitely be helpful during marriage, they really become invaluable after separation or divorce. Social media is now playing a much bigger role in divorces. From divorce announcements to public retaliation, social media allows spouses to make a splash. A spouse can be blindsided by the other spouse’s public declaration of the couple’s intent to divorce. However, you can use your prenup to require a joint statement to avoid shock and surprise.
Also, consider the Kimye debacle. As you have likely seen in headlines, Kim Kardashian and Ye West are in the midst of a divorce and Ye isn’t holding back with his feelings on social media. In fact, this social media activity has infiltrated the actual divorce proceedings. This is a perfect example of what types of posting activity can be addressed in your prenup.
Additionally, what about when you have children? Can either of you post anything you want related to the children? This becomes especially touchy when divorced spouses have new partners in their lives. Setting some ground rules, or even an outright prohibition on posting pictures of the kids, can be helpful. You also may notice that many celebrities conceal the faces of their children when they post pictures. If you’re high profile, this may be something to consider for your prenup.
Here’s a breakdown of some common scenarios where a social media provision may be helpful:
- Control of shared accounts
- Public v. private accounts
- Communication with exes
- Embarrassing photos/posts
- Breakup/divorce announcements
- Harassing posts during separation/divorce
- Revenge porn
- Posts/photos about children
It goes without saying that just including a social media provision in your prenup will not prevent your spouse from violating it. However, there could be serious consequences if they do. For example, perhaps you have a provision requiring a joint social media divorce announcement. If either of you violate that provision, it could cost you. You can decide the amount in your prenup which can range from hundreds of dollars to millions of dollars depending on you and your spouse’s financial status. Continuing with the divorce announcement example, violating that provision could cost you $10,000 – as an example.
While yes, you can never completely prevent your spouse from posting, including one of these provisions in your prenup may be enough of a deterrent to prevent your spouse from violating the prenup. The harsher the penalties, the greater the deterrent effect.
Now here’s where things get tricky. Enforceability of social media provisions – like lifestyle clauses – is not totally clear (read more on enforcement of lifestyle clauses here). States vary wildly on this issue. For example, states such as Louisiana, Georgia, and Minnesota likely will not enforce social media provisions. Additionally, making things even more challenging, some states don’t have a definitive stance on this issue, and can vary from court to court or judge to judge. The problem is that prenups deal generally with financial matters whereas social media provisions are non-financial in nature and are therefore disfavored by some states.
However, where social media provisions are valid, enforcement of the provisions may be easier than other lifestyle provisions. Let’s take a common subject of lifestyle clauses – infidelity – as an example. What counts as infidelity? Do you have proof? Infidelity can mean different things to different people and when it occurs, there often isn’t concrete proof. This can make prevailing in court on this issue difficult. With social media provisions, it’s a little more cut and dry because photos and posts are broadcasted for the world to see (though of course there are still grey areas).
If you are considering including a social medial provision in your prenup, be sure to check out your state laws on the subject to ensure your prenup will hold up in court.
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