Can My Divorce Mediation Include Confidentiality Agreements?
Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.
How Does Divorce Impact My Private Life?
The publicity surrounding the Depp / Heard defamation trial has been a reminder that if things go wrong in a marriage there can be a very big fallout. The cast of characters testifying at their trial represented every aspect of their lives together, from doctors, nurses, bodyguards to close friends and even the owner of a campground where they stayed. The Depp / Heard trial revolved around an op-ed that Amber Heard wrote upon her appointment as ACLU ambassador for Women’s Rights. The op-ed referred to a domestic violence restraining order that Heard had obtained before her divorce from Johnny Depp. When high profile people speak out or make creative works after their divorce, any reference to the marriage can cause conflict or even legal action.
Can I Make an Agreement in my Divorce to Protect my Privacy?
You do not have complete control over everything your ex does, but you may be able to keep details of your private life private by making an agreement with your ex. The more amicable and fair these agreements the more likely they will not be broken. The most common agreement a couple enters into to protect their privacy and their assets is a prenuptial agreement (prenup), before the marriage. The advantages of a prenup (as opposed to a postnup) are that it is more likely to be enforceable in court should it be challenged, and that it is entered into before the marriage when both parties are financially independent and in a strong position to make decisions about their future.
If you don’t have a prenup you can make a postnup, or postnuptial agreement and include confidentiality provisions. If you are getting a divorce you can include confidentiality agreements in your divorce agreement. These agreements are much more likely to be kept when they are made respectfully and fairly during a neutral process like divorce mediation. Divorce mediation is also a completely private process, unlike going to court. If you are using a postnup or divorce agreement to keep things confidential, you need to be particularly careful to make a fair agreement. Both parties must get something out of an agreement. A creative spouse could offer their ex profits from a creative work in exchange for some freedom to use the relationship as inspiration to make art, music or fiction.
What Kinds of Details Can a Prenup, Postnup or Divorce Agreement Prevent from Being Disclosed?
The most common subjects that people want to keep private are: information about finances, details about a couple’s children or family life, intimate details about a marriage and intellectual property or proprietary business secrets. A prenup, postnup or divorce agreement can factor in confidentiality clauses related to any of these matters. Because some of these issues could touch on freedom of speech, it’s important that any confidentiality clauses are carefully drafted with divorce mediators who know the law. Spouses or ex-spouses must also be entering into a voluntary and fair agreement. Courts are more likely not to uphold agreements that have been made in an unfair or coercive way.
Do I Have a Right to Speak About My Marriage or Create Art About It?
Nobody has the right to defame anyone by saying anything untrue about them. Unfortunately, people’s versions of truth can clash. Defamation lawsuits are becoming increasingly common, so any issues regarding creative expression or speaking about a personal relationship in public should be navigated with extreme care. You can include non-disparagement clauses in your prenup, postnup or divorce agreement but sometimes, these can be challenged in court on a first amendment basis. Long story short: if you want to agree with your spouse to limit their ability to talk about private matters, you have to make a respectful agreement which offers benefits to both of you. The best way to do this is to use divorce mediation. Mediation allows you to find ways of collaborating and offering benefit to both parties while de-escalating conflict.
Do I Have to be a Celebrity or Artist to Want to Keep My Life Private?
No. In today’s world, many people own a business that relies on social media. Even if you only have personal social media accounts, a lot of harm can be done to your personal and professional life if you or your ex are publically broadcasting details about your relationship, finances or kids. Perhaps the saddest casualty of divorce in the social media age is your children’s privacy. Many people who choose to mediate their divorce or mediate a prenup or postnup, include provisions that will protect their children in the event of a divorce. In other cases, your business could be affected if confidential business secrets are leaked.
Our Services And How We Can Help
At Divorce Options San Diego we are West Coast mediators who empower divorcing spouses to come to fair and productive agreements that can benefit their future after divorce. We are compassionate California divorce mediators who help couples to avoid adversarial divorce and come to win-win solutions that encompass all aspects of dissolving a marriage, from finances, to child custody to any confidentiality and business matters.
Divorce mediation is a completely confidential process that keeps your divorce private and out of the courts. If you need to make additional agreements with your spouse to protect your privacy you can incorporate these in your divorce agreement. If you are about to embark on a marriage or if you are married and want to make a prenuptial or postnuptial agreement, we can work with you to make an agreement that covers all aspects of your finances and any privacy concerns if desired. These agreements may seem intimidating if you are about to get married, so often our clients prefer to work on these agreements in combination with marital mediation sessions that can help them grow in their relationship and empowerment as a couple.
We have offices in Solana Beach CA and can mediate with couples getting a California divorce in-person or remotely for couples outside California, or anyone wishes to avail of the comfort and convenience of remote mediation. Please contact us to learn more about our divorce mediation services.
