There is a new addition to prenuptial agreements that are a rather depressing sign of our times. A “social media clause” is being added to protect married couples from later embarrassing postings if things do not work out. The language of the clause is sweeping and, if you thought prenups took the romance out of marriages, this clause makes the whole enterprise downright scary.
We have seen a highly problematic trend toward the inclusion of a “non-disparagement clause” in business service contracts and agreements from dentists to photographers. The agreements allow shoddy businesses to hold customers liable for simply criticizing their services or performance. These customers rarely realize that the form that they signed had such a provision.
Now we are adding the same obnoxious element to a marriage. For someone making less than $5 million, it can impose a $50,000 fine per episode. The clause however includes not just negative but positive postings. New York-based attorney Ann-Margaret Carrozza is quoted as saying that the clause requires the parties to “agree not to post, tweet, or otherwise share via social media, positive, negative, insulting, embarrassing, or flattering images or content of the other.” This is to avoid one former lover saying the she or he thought a picture or posting was a good thing.
For those who like this addition, it is sometimes a glimpse into a very weird relationship by conventional standards. Sheri Meyers, a Los Angeles-based “relationship and family therapist” had such a clause drawn up for her prenup with “relationship coach” Jonathon Aslay. She insists that it has added a cautionary element to their relationship where one will say to the other “This an “SMP” [social media prenup] moment. Is this OK [to post]? Is this crossing the line?” For me, that sounds just about as romantic as a 30(b)(6) deposition.
Those advocating these clauses often cite the 50 percent divorce rate as justification. However, I wonder if that divorce rate is due in part to the fact that people are increasingly treating marriages as purely contractual and transient relationships. It is marriage without the need to fully trust like Reagan’s old “trust but verify” approach to U.S./Russian relations. Couples are treated as potential adversaries and threats. The “piece of mind” that comes from such clauses is based on a fear that this person could change from your soulmate to your stalker in the click of a mouse. Call me old fashioned but I would still rather that leap of faith comes with romance.