Confidentiality clauses are usually used in high-end multi-million dollar marriages and high profile business and entertainment people. However, my opinion is that privacy clauses should be included in every prenuptial agreement and in any type of relationship, such as domestic partnerships and civil unions or even in a dating relationship depending upon who is involved, because the Internet, Twitter, texting and technology today spreads rumours and private details like wild-fire.
If any attorney fails to include a confidentiality clause in any prenuptial, postnuptial or any relationship agreement then they are being negligent to their client. A good example of a confidentiality clause would be Donald Trumps' clause that was upheld by the courts as legal:
"Without obtaining [the husband's] written consent in advance, [the wife] shall not directly or indirectly publish, or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalized or not, concerning her marriage to [the husband] or any other aspect of [the husband's] personal, business or financial affairs, or assist or provide information to others in connection with the publication or dissemination of any such material or excerpts thereof. * * * Any violation of the terms of this Paragraph (10) shall constitute a material breach of this agreement. In the event such breach occurs, [the husband's] obligations pursuant to Paragraph (9) hereof, to make payments or provisions to or for the benefit of [the wife], shall thereupon terminate.
In addition, in the event of any such breach, [the wife] hereby consents to the granting of a temporary or permanent injunction against her (or against any agent acting in her behalf) by any court of competent jurisdiction prohibiting her (or her agent) from violating the terms of this Paragraph. In the event that an action for divorce is instituted at any time hereafter by either party against the other in any court of competent jurisdiction, the parties hereto agree that they nevertheless shall be bound by all of the terms of this Agreement. To the extent possible and appropriate this Agreement shall be incorporated in the decree to be entered in such action and shall not be merged therein. If there be anything in such judgment or decree inconsistent with any of the terms or provisions of this Agreement, the terms and conditions of this Agreement shall govern and shall survive such decree." Trump v. Trump,179 A.D.2d 201, 582 N.Y.S.2d 1008(1st Dept, 1992)
Let's compare the brilliance of adding a confidentiality clause as compared to the irresponsibility of not having one by using the recent Rosie O'Donnell relationship split-up and last year's Ex-New Jersey Governor's, Jim McGreevey, divorce. Let's start with McGreevey. Wow, what an irresponsible spectacle those two made of their private lives, and with a child to watch and hear about it. McGreevey and his wife laid out the sordid details of their most private relationship, appeared on Oprah to humiliate each other and they each wrote a book just to stick the knife in deeper to each other's backs and so we can all see what a sex scandal between two morons looks like. It was all so unnecessary and clearly the result of neither one of them having class nor an attorney to draft a decent prenuptial for them with a confidentiality clause to spare us all from such nonsense. They embarrassed themselves and the State of New Jersey, which the State of New Jersey really didn't need the further embarrassment those two caused.
Now, look at Rosie O'Donnell. The woman was brilliant enough to have an agreement in place; and she did so even though she actually is not legally married. Rosie O'Donnell and her long-term partner Kelli Carpenter are in a same-sex relationship which is not a legally recognized marriage. However, from how I am reading Rosie's comments about their break-up, I bet my legal license that those two entered into some serious agreement. Rosie's says:
" "We’re a family, we remain a family and we’re working on the issues. Kelli and I love each other very much and we are working on our issues," O’Donnell, 47, said in a statement. "Those are the only words I am ever going to say. Ever. And that is something that has been agreed upon by all parties." USA Today 10-22-09
The magic words are "and that is something that has been agreed upon by all parties." And there you have it-Rosie and Kelli were brilliant enough to create an agreement when they entered into their relationship, or some time during their relationship, which will keep both of them as civil as they should and want to be. They probably would have been civil anyhow since they were smart enough to think ahead and agree to and create a confidentiality agreement that would maintain civility in the event of a break-up.
As a divorce attorney for over 20 years, I have seen break-ups bring out the worst in the same people who a long time ago were happy and in love, and never saw the break-up coming. It is unexplainable, other than to say that agreements need to be in place to dignify any two people who may wind up in sordid, confusing splitsville. And then, you never know...they may end up back together again, regretting the break-up as recently reported about Madonna and Guy Ritchie.
Getting back together is another agreement to be blogged about later. For now, I wish the O'Donnell Carpenter relationship luck in settling their differences. Not even being legally married, they are smart enough not to air out their privacy on Oprah, blog it or create drama in front of paparazzi--they'll be a class act, unlike the McGreeveys or that witch Heather Mills who spewed salacious quips against adorable, just wanting to be loved Paul McCartney who told us the real truth with John Lennon-- "all you need is love...love is all you need."