A Pre-nupt for Digital Privacy?

The boyfriend and I are getting married this weekend but we are not getting a pre-nuptial agreement for digital privacy.   But then again, we are not celebrities or as high drama and high maintenance as someone like Johnny Weir whose marital roller coaster is a tabloid dream come true.   But for many celebrities, such agreements is a growing trend so that upon a divorce their soon to be former spouse cannot use personal information in divorce court or to unleash a tabloid "War of the Roses."  I do not, thank god, do divorce work, but I have drafted pre-nuptial agreements for clients, especially LGBT clients.  The Daily Beast looks at the new trend:

The breakup, makeup, and alleged breakup again of figure skater Johnny Weir and his husband, Victor Voronov, has captivated media and skating fans alike. The flamboyance Weir has long brought to his performances on the ice colored this story as well, from accusations of high-fashion theft to a brewing custody battle for the couple’s dog Tema. Then there are the more serious mutual allegations of domestic violence. But the contents of a post-nuptial agreement reported to be a last-ditch effort to save the union proved to be even more eyebrow raising than many of the allegations Weir and Voronov hurled back and forth at each other in the media and in court.

According to reports, the post-nup contained provisions requiring Weir’s mother to stop meddling so much (a request many unhappy spouses dream of!) and another, more unique demand: specific restrictions on whom the couple may text and what kind of texting is appropriate, with specific language to address “sexting.” (Voronov previously alleged texting proof that Weir had been unfaithful.)

Weir and Voronov are certainly not the first couple to be undone by text messages. According to reports, Tiger Woods’s affairs were uncovered as a result of intercepted text messages by his wife.

But here’s a question: Should spouses be permitted to access to each other’s texts or email at all and use them in litigation during breakups? Increasingly, high-powered couples are determining the answer is no, and are going to great lengths to insure that a spouse cannot do so without repercussions. Specifically, more couples are beginning to request digital privacy clauses in prenuptial and post-nuptial agreements.

According to Steven J. Eisman, a matrimonial lawyer with Abrams Fensterman, “In a prenuptial or post-nuptial agreement a digital privacy clause is put in place so a spouse can’t reveal the other spouse’s personal information in court if a divorce were to occur. This includes all digital devices for example, smartphone, computer and tablets.” Eisman explained that digital privacy clauses are distinguished from traditional non-disclosure agreements in that most NDAs have exceptions for courts of law. But digital privacy clauses can specifically preclude a spouse from using anything gathered on a laptop or cell phone in divorce proceedings. This is particularly important for public figures, where confidential information revealed in divorce proceedings can prove particularly damaging.

At first glance, digital privacy clauses may simply sound like yet another way for a wealthy person to gain the upper hand over a less moneyed, less powerful partner in divorce proceedings. After all, a poorer person usually has less leverage in prenuptial agreement negotiations. So if the wealthier partner says, “I don’t want you going through my emails ever or you will face a financial penalty,” one might presume he or she has something to hide—like multiple girlfriends or boyfriends. But what’s at stake for public figures is not necessarily just a secret sexual indiscretion.

For these individuals, insuring that an angry ex can’t use certain emails, texts or social media during disputes is not simply a matter of being discreet, but being a smart businessperson.

But public figures are not the only ones who need to weigh the costs and benefits of digital privacy clauses. Catherine Zang, of Cincinnati, Ohio, discovered her husband had been using surveillance equipment to record her in their home, and software to copy her emails and record who she was corresponding with online.

Eisman said these clauses are likely more common than we think and will continue to gain in popularity, particularly among those in positions of prominence and power. “There is a lot of talk about certain politicians who have gone through divorces where allegedly their spouses have gotten information off their computers and put it in safe deposit boxes,” he said. “There are rumors. You never know. There are people at high levels whether corporate or government who discuss all sorts of things in email.”

 What do readers think about this issue?