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Episode 80 Transcript: Privacy Concerns in Divorce

I wanted to speak in this episode to a concern that comes up for a small subset of clients as they’re going through and as they’re concluding their divorce, which are privacy concerns. Essentially, it’s the concern that generally speaking, your spouse or your ex-spouse would share information about you, about your personal life, your family, or your business that would be detrimental to you or would make you uncomfortable on a personal level or detrimental to you professionally or in your business life.

What are the common ways in which that comes up when it does come up? Well, first of all, if your case is in court, it is open to the public. I don’t mean to say that the ultimate resolution of your case is open to the public. It’s generally not, but during the pendency of your court case, when you are appearing in court, when your attorney appears on the record, or when a testimony is taken in open court, that is open for other people to observe and to hear. Then also, even if you’re not in court during and after your negotiation process, information about you, about your business, about your life could be shared by a spouse or an ex-spouse directly by word of mouth, directly to another person or people. It could be shared through some other sort of written or audio publication on a podcast, on a blog, on social media.If you’re in a very small subset of people where information about your personal or business life is newsworthy, it could be shared with the media and published not by your spouse or ex-spouse directly, but by a third party, by a news media outlet regarding whatever personal or business matters have been shared with them.

Let me caveat this and share a reality check, which is that for 99% of couples going through the divorce process, this is really not relevant. No one in the media is interested in publishing a story about your divorce. Even if a blog post is made by an ex-spouse about you or something related to your life or business, it’s unlikely to be read by many people or unlikely to happen at all. This is not likely to come up in your case, but to the extent you are in that subset of people where this could come up, it is likely to come up, and if it did, it could be really detrimental and have a really negative impact on you, either personally and/or in your professional or business life.

Let’s talk a little bit about what can you do about it? Well, first of all, one element that is within your control, although it’s jointly within the control of you and your spouse, is to keep your case out of the court system to the extent you can. If you can keep your case out of the court system and you can handle all of your negotiations privately, then you will be doing a lot to maintain the confidentiality and privacy of the information that is disclosed and must be disclosed as part of your negotiation process. That’s huge already to keep your case out of court, granted that’s not entirely within your control. Your spouse has to be on board as well. I would say endeavoring to keep your case out of court, you would want to take care to not act in a way, in the context of your divorce negotiation, to not take actions or make decisions that would lead your spouse to feel that going to court is necessary. If privacy is important to you, conducting yourself in a reasonable way in an out-of-court negotiation should also be important to you because that lowers the likelihood that you will end up discussing personal, financial, and potentially business-related matters in open court.

The second thing you can do, which again, not likely to come up, but if it did, if some of the information that you’re concerned about being shared publicly has been shared in such a way on a particular platform, say a social media platform, and you think that it may violate some of the terms of usage of that platform or the rules that bind users of that platform, you can attempt to put yourself in touch with or to log a complaint with the particular platform on which your spouse or potentially a third party has published the information of concern to you. More often than not, the way you would deal with a confidentiality or privacy concern is through written agreements with your spouse. Those can be interim written agreements, meaning they are signed and binding on you during the course of your negotiation. Those can also be written agreements that are incorporated into your final agreement that are binding on you going forward once you sign the final agreement.

In the context of interim agreements, what commonly comes up would be more of like an NDA, a nondisclosure agreement, where you have to share certain information about your employment, your business, your employer that you and your employer do not want disclosed under any circumstances outside of the divorce negotiation process. As a condition of sharing information related to your employment, to your employer, to your income, you can request and require that your spouse and your spouse’s attorney would be willing to sign a nondisclosure agreement related to the information that you’re sharing. If the scope of the NDA that you’re requesting be signed is reasonably well-tailored to the information that you’re sharing and to it not being shared outside the context of your divorce negotiation or an eventual litigation of your divorce, your spouse and your spouse’s attorney will likely be open to signing something like that because ultimately their goal is to obtain relevant information about your income and your employer for the purpose of negotiating a settlement in your divorce context, not for the purpose of sharing the information on Facebook. Signing an NDA is something that can address your confidentiality concerns while you’re going through the negotiation process.

If you have a reason to have concerns about confidential personal information being, say, shared on social media sites, and I don’t mean just that you’re concerned that that will happen but that that has actually happened in the past or you have any reason to actually fear that it will happen, you can also raise that as something that you might like to have an interim agreement about while you’re negotiating and you can see whether or not your spouse and your spouse’s attorney are willing to sign something like that as well. Most common of all in the ultimate settlement agreement that you negotiate is to have some kind of confidentiality article that talks about certain information, certain types of information that you and your spouse are both prohibited from sharing with third parties. Often there are exceptions made to certain third parties, like attorneys, financial advisors, therapists whom you and your spouse could, in fact, share that information with, but to have a general prohibition of sharing information related to your personal lives or it may specifically be related to a particular business entity that you’ve disclosed a lot of information about in the process. To have the confidentiality article in your final agreement prescribe any sharing, any public sharing or just sharing of that information with people other than those who are specifically permitted to receive that information, as I said, like an attorney in the future or a financial advisor or a therapist.

What I would say there is that you really want to think about, for the terms of that confidentiality article, what specifically are your areas of concern? The broader the article, the more potential disagreement, and negotiation around it, but also the more protective it is. You want to identify yourself what are your priority areas that you want to make sure there is a written obligation, a legal obligation for you and your spouse to keep completely confidential but for in the very narrowly identified exceptions that you include in the confidentiality article itself. In doing that, you also want to take into consideration that each of you and your spouse need to be able to go forward and live your life in a normal way. You can’t be prohibited from talking about your divorce or your experience of the relationship in all fora. So you also want to identify what would be a reasonable forum or fora in which your spouse and you should be able to talk about your divorce or to talk about elements of your relationship.

Sometimes people are less concerned about public sharing of personal details or details related to their finances or their business, but they are uncomfortable (and this comes up a lot) with social media. They’re uncomfortable with their spouse continuing to have pictures of them, posts about them. I don’t mean ongoing into the future, but if someone has had their Instagram up for five or seven years and they have old photos of you on there, that might be something you’re uncomfortable with. It is also not necessarily something that is typically prescribed by a confidentiality agreement in your final settlement agreement. That said, it could be something that you negotiate as part of your settlement.

While it may not be something that you want to lead with, or if it’s important enough to you, you certainly can lead with it as one of the final settlement terms that you’re proposing, but it may be something that when you and your spouse have both made initial proposals, and you’re revising counterproposals and incorporating components of what your spouse has asked for in a revised proposal, you could consider saying, “I would be willing to do XYZ that my spouse has requested of me that I didn’t originally propose or that wouldn’t be my ideal resolution, but I’m willing to do it if, in exchange, ABC components of my proposal plus my spouse making the commitment to remove all of the photos of me on these social media platforms and not to post future photos of me on these social media platforms.”

Frankly, posting on social media or potentially posting to a website or a blog, for most people, is going to be the most common way that their future ex-spouse is going to be sharing any information about them whatsoever, if at all, in the future. It would be just (a) having past photos or posts about you on their social media sites, or (b) potentially posting something in the future on those same sites. If that’s something that’s important to you to speak to, you want to speak to it in the course of your negotiation. My suggestion, what I have seen be effective in the past is to raise it as something you’re willing to do in part in exchange for doing something of value to your spouse.

Overall, this is not an issue that is important to a lot of people or that comes up for a lot of people, but if it is something that’s important to you, and that does come up in the context of your negotiation, first and foremost, the best way to keep things as confidential and private as possible is to deal reasonably with your spouse out of court and to not end up in court in the first place if you can avoid it. Then secondarily, throughout the course of your negotiation and then certainly in your final agreement, you can negotiate language of a confidentiality article that addresses some of your most critical concerns about personal and business-related confidentiality in the context of your final agreement.

That was our mini-episode on addressing privacy and confidentiality concerns in the context of your divorce negotiation. I hope it was helpful for you.

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