LANGUAGE NEEDED TO PROTECT AGAINST USE OF PRIVATE PHOTO’S

Question (by e-mail): I have a real big problem and need your help. I am a 30- year-old woman with a very responsible job who was recently divorced from a 35-year-old man after three years of marriage and no children. My ex-husband and I each hired divorce lawyers and, since each of us was employed and because we had acquired very few assets and little debt, we signed a final separation agreement through which we divided up our property and debts, waived our rights to support, released each other from everything, and got divorced.

My ex-husband moved out of state; I married the man I had been seeing during our separation; and I thought everything was going to be fine – that is, until I received a call from a girlfriend who had heard from my ex. Even more difficult than believing what she told me was believing what I saw: My ex-husband had created a Website on the Internet and, under heading of "revenge," posted a series of "intimate" photographs he had taken of me during our marriage, free for public viewing. And, to make matters worse, my ex is now is selling copies of an "intimate" videotape he made of me during our marriage.

I immediately went to my divorce lawyer – whom I had not told about these pictures and video because my husband had promised me that he had destroyed them and because I was embarrassed – to find out what I could do. My lawyer re-read our documents and told me that I could not do anything because my ex and I had 1) agreed that all properties in my possession belonged to me and those in my ex’s possession belonged him and 2) released each other from all present, past, and future claims. Now my new husband has left me, and I am about to lose my job. I tried to reason with my ex, but he only laughs at me and tells me there is nothing I can do about it. It doesn’t seem fair that I have to sit back and be embarrassed by this. Please tell me what I can do to salvage what is left of my life.

Answer: Although your divorce lawyer tells you that yours is a case of "chagrin and bare it", we don’t know if we agree. Having not run into this problem before, we did some preliminary research and called a few good lawyers we know. While your divorce agreement on its face seems to close the door, there are several areas we believe you should explore with a good tort lawyer that may lead to civil causes of action for injunction and damages. For example: 1) If you own the copyrights to these photographs and videos, your ex-husband and those who helped him may have violated your intellectual property rights. 2) In some states, the malicious dissemination of even truthful information may constitute defamation. 3) Not being a public person, you may be able to assert that your right to privacy is being violated. 4) Most states have causes of action called "outrage" or "intentional infliction of emotional distress" which aptly describes your ex-husband’s conduct here. And, if one or more of 1) through 4) are available, you may also have a cause of action against the Internet Service Provider that chose to post these pictures without your consent.

But your situation points up two other vital issues: 1) To those going through divorce, remember that no matter how embarrassing it may be, be sure to tell your lawyer everything so he or she can make sure to try to protect you; and 2) To matrimonial lawyers throughout the United States, make sure to ask your clients about these sensitive issues and think about making it a practice to include in your agreements appropriate language which will prevent this type of atrocious conduct.

Because of limited space here, we have developed some suggested language which can be found at this website under "General Divorce."

SoloFact: Because of the need to provide more information about long-term care and other issues affecting the elderly, www.flyingsolo.com recently announced a complimentary Internet Magazine called I-CARE. Interested people can subscribe to I-CARE at the bottom of the Flying Solo homepage which is located at http://www.flyingsolo.com.

Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at http://www.flyingsolo.com.

Please e-mail your questions to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, SC 29211. To receive the American Academy of Matrimonial Lawyers "Divorce Manual," either go to "Media" area of this website and use your credit card or send $7.50 payable to "AAML Fulfillment" to P. O. Box 11704, Columbia, South Carolina 29211, and we'll make sure you receive it.

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