Digital Privacy Clauses in Prenuptial Agreements

By Michael DiFalco

In an increasingly digital world, modern technology has profoundly impacted legal matters. For example, social media, text messages, and browser history can all create damning evidence against an individual in court.

With divorce proceedings in particular, digital evidence can quickly make a court battle turn ugly. As a result, many forward-thinking couples and attorneys have opted to include digital privacy clauses in their prenuptial agreements.

Digital Privacy Clauses: The Basics

A digital privacy clause stipulates that in the event of divorce, no spouse may use the other’s digital communications against them in court. Generally, these clauses cover the following areas:

  • Email communications
  • Facebook activity
  • Twitter activity
  • Text messages
  • Browser history
  • Call history
  • Posts and activity on any other web application

Digital privacy clauses are especially important in bitter and hostile divorces. In these cases, a divorce attorney may scrutinize a spouse’s private life, exposing potentially damaging information in an effort to sway the case in their client’s favor. Emotions can also become heated in a divorce, and both parties may be tempted to bring up old digital transgressions to discredit or embarrass each other.

However, these clauses can eliminate this possibility and help keep proceedings amicable. Not to mention that if every objectionable digital activity came up in court, divorce proceedings would quickly become drawn-out and expensive.

What Digital Privacy Clauses Don’t Cover

Digital privacy clauses apply to most of a person’s digital activity. However, there are limits to these clauses. For example, they don’t protect evidence of any illegal activity. They also don’t protect evidence of digital assets (such as stocks or cryptocurrency), as these must be factored in when considering alimony. Most confidentiality clauses or digital privacy clauses would not prevent a party from using evidence in the divorce proceeding either. 

Enforcing Digital Privacy Clauses

Digital privacy clauses might seem perfect in theory, but you may wonder how they can be enforced. Usually, the spouses agree on a certain financial penalty that will be imposed if either one breaks the agreement. This penalty provides a significant incentive for both parties to honor the clause.

Of course, prenuptial agreements are unique and highly individualized. Therefore, creating a digital privacy clause should also include a discussion of how it will be enforced.

Advantages of Digital Privacy Clauses

Adding specific clauses to a prenuptial agreement may take time and a lot of thought. However, a fair digital privacy clause can give both spouses peace of mind, especially if the marriage deteriorates. If you’re unsure of whether you need a digital privacy clause, consider these advantages:

  • They can keep costs down in the event of divorce proceedings
  • They can prevent the private lives of both spouses from being publicized (and shared with their children)
  • They can help ensure divorce proceedings will be efficient

But before you place boilerplate language in your prenup, keep in mind that every couple is different, as is every digital privacy clause. So when creating a clause to add to your prenup, remember that it should be uniquely tailored to your situation and specific enough to be legally enforced. The best way to do so is to work with a reputable family law attorney.

Thinking Ahead with Prenuptial Agreements

No one likes to consider the possibility of a new marriage ending. But since the unexpected can happen, it’s wise to be prepared with a thorough prenup. 

A family law attorney can work with you and your spouse to create a prenuptial agreement that will protect both of you in the event of a divorce. You may find that you want to add a digital privacy clause to your prenup, and a lawyer can help you integrate this language.

At Aiello & DiFalco LLP, we’re proud to help couples and families handle many of life’s difficulties. If you need a family law attorney in the Garden City, New York, area, contact us today for a free consultation.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.