Can an NDA Prevent Divorcing Spouses From Disparaging Social Media Posts?

Non-disclosure agreements (NDAs) are a set of ground rules spelled out in a contract dictating what each party can and cannot say about each other publicly. We see NDAs used a lot in the context of employment law, but it can also be used in New Jersey divorce cases as well. They can be particularly valuable in this digital age, where content on social media platforms can have a significant impact on one’s professional prospects and future personal relationships.

NDAs have historically been more common in celebrity marriages or breakups, cases where one or the other had high profile jobs. But these days, given how ubiquitous smartphones and social media are, it may be a good idea for most divorcing couples to at least look into an NDA. Just browse how many posts on YouTube, TikTok and other channels involve angry exes publicly ranting about each other. One need not be a celebrity for such actions to have very real consequences on their career, relationships, and kids.

For some people, it’s the sort of agreement they can reach on their own. But even in that situation, it may be wise to have that agreement formalized by the Court, particularly if your career, the well-being of your kids or standing in the community could be impacted.

NDAs Can Be Drawn Up Well in Advance of Divorce - or Even Marriage

Most people aren’t inclined to think about an NDA for their relationship until they’re facing the prospect of a potentially messy, high-conflict divorce. However, it’s possible to enter into an NDA long before that point.

Celebrities will often have such agreements drawn up, not only for their employees but also people with whom they’re in a relationship. The gist of it is to lay the ground rules for what can and cannot be shared publicly during the relationship or in the event of a breakup. These agreements are sometimes called “social media prenups,” but they can pertain to any platform.

Such agreements may contain provisions such as:

• Barred sharing of kids’ photos or any details of their lives without some means of mutual consent.
• Prohibition on mentioning or tagging one another on public social media posts.
• No disclosure of business dealings, finances, or marital financial details.
• No posts on legal matters of any kind.

Would I Benefit From an NDA in My New Jersey Divorce?

Some questions to ask yourself when considering whether an NDA might be beneficial in your case are things like:

• Do you have a job heavily influenced by public perception? (Not just “celebrity,” but elected posts, medical careers, law enforcement, etc.)
• Are there a lot of personal details that might be detrimental to you if they were publicly shared by your ex?
• Are there previous legal matters that you would like to remain private?
• Are you anticipating a high-conflict divorce or bitter custody battle?
• Is social media (Twitter, TikTok, Facebook, YouTube, etc.) already a place where one or both of you goes to vent about personal issues.

Lots of non-disparagement clauses in prenuptial agreements or in other areas of family law involve children and which type of comments must be avoided around kids. It may include directives to avoid negative statements to the kids about the other parent or other parent’s new partner, etc. Sometimes the phrase “in the presence of children” can be construed as avoiding public statements on social media, depending on the kids’ ages and social media presence.

Are Divorce NDAs Actually Enforceable?

In New Jersey, a prenup can address any matter that doesn’t violate public policy, as outlined in NJSA 37:2-34(h). It’s considered “unconscionable” only if the party seeking to set the agreement aside can prove their statutory requirements - including full and fair disclosure - weren’t met prior to the prenup being formed.

NDAs are part of prenuptial agreements are enforceable so long as they are valid contracts. This means it will need to be shown that both parties must have mutual assent and capacity and that the contract is otherwise legal. A contract can be deemed illegal or invalidated for any of the following reasons:

• Duress or coercion.
• Lack of capacity.
• Fraud or misrepresentation.
• Nondisclosure.
• Undue influence.

Courts also won’t be inclined to enforce contracts that are overly-vague, against public policy, or unconscionable. For instance, an agreement that prevented a spouse from calling for emergency services or law enforcement in the event of a domestic dispute would be unconscionable and against public policy. Courts will look to see whether the agreement is excessively disproportionate or unfair at the time of the agreement. If one party has an attorney and the other doesn’t, there might be a heightened risk of the contract being invalidated for lack of fairness.

Non-disparagement orders can be vulnerable to First Amendment free speech challenges, so it’s important that they be thoughtfully drafted with the help of an experienced lawyer. In considering whether an agreement can be upheld, Courts will consider the breadth of the restriction and balance that with the seriousness of the potential harm to the child.

If you are considering an NDA as part of your New Jersey divorce or if your estranged spouse or ex is asking you to sign one, you need to discuss your legal rights and options with an experienced family law attorney.