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FS-Divorce Intimate Photos Release
Jan L. Warner & Jan Collins

Question: My husband and I divorced last December, and I thought I had everything behind me. Well, it turns out I didn’t. During our relatively short marriage, my husband took rather intimate photographs and video of me that I forgot to tell my lawyer about. My husband, who kept them, has now put them on CD’s and sent them to my parents and every man he learns I am dating. I just found out from my girlfriend that he had posted some of them on the Internet. I called my lawyer who told me there was nothing that could be done. If I can’t do anything, this will follow me for the rest of my life. Please help.

Answer: When a couple divorces, lawyers often use boilerplate releases and other general language in their property settlement agreements in an effort to end as much future litigation as possible.

But where one or both of the spouses have intimate photographs and videos of the other, there should be special planning to assure the protection of the client from future dissemination of the materials and ensuing embarrassment.

First of all, if there is the potential of this type of situation, general releases should not be given, and certain protections should be written into the agreement in order to prevent later dissemination.

There should also be provisions calling for recovery of damages, injunctive relief, and contempt should dissemination take place in violation of the agreement and order approving the agreement.

With this in mind, the following clauses might be of assistance to lawyers who handle matrimonial cases, but caution is urged that lawyers research these issues in their jurisdiction before relying on these materials:

Husband and Wife acknowledge that during their marriage, certain photographs, video tapes, audio tapes, and/or other materials of an intimate and personal nature were made and/or collected. In this regard, Husband affirmatively states that all such materials in his possession, including all negatives and all copies, have either been destroyed or returned to Wife. Wife affirmatively states that all such materials in her possession, including all negatives and all copies, have either been destroyed or returned to Husband. Both parties affirmatively represent that neither has retained any such materials. Should any such materials be later found or discovered, such materials and all copies thereof shall be immediately sealed and delivered to the party depicted in such materials.

Both Husband and Wife are restrained and strictly enjoined from showing any such materials publicly, privately, or in any type of format or environment.

Husband and Wife each acknowledge that the person or persons depicted in any such materials owns/own the copyright to said materials, and agree that dissemination or use of such materials shall amount to not only infringement of copyright, but also invasion of privacy and the tort of outrage/intentional infliction of emotional distress which shall be actionable in an action at law or equity and shall include the right to both temporary restraining orders and injunctive relief.

In this regard, Husband and Wife agree that should either of them or their agents violate any disclosure provisions of this agreement and the order approving this agreement, the minimum damages due to the harmed party shall be Fifty Thousand Dollars ($50,000). In furtherance of their good faith representations herein, Husband and Wife each confess to judgment hereby in the minimum sum of $50,000 should either violate the terms hereof.

Here, you did not tell your lawyer so retroactive planning is not possible. In your situation, there are a number of issues that should be researched, such as: 1) Who owns the copyrights to these photographs and videos. 2) Does the malicious dissemination of even truthful information constitute defamation in your state? 3) Not being a public person, can you assert that your right to privacy is being violated by the dissemination? 4) Will “outrage” or “intentional infliction of emotional distress” apply in your state? 5) Does the Internet Service Provider that chooses to post such materials without consent have responsibility?

You need to talk to a lawyer who will listen to you and not “blow off” such an important issue.

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