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Should you have a non-disparagement clause in your divorce?

On Behalf of | Nov 22, 2022 | Divorce |

First, you fell out of love, then you stopped even liking your spouse. Now, neither of you can stand the other.

Unfortunately, cutting your ties and cutting your losses isn’t going to be that easy, since you and your spouse share minor children together. How do you get through the divorce process and the connected custody issues without letting the vitriol spill over into your children’s lives?

Could a disparagement clause help? Maybe. It’s important to understand what these clauses do – and don’t – cover.

Non-disparagement orders can help keep the children insulated from an ugly divorce

Essentially, judges have been using non-disparagement orders for a while to try to insulate a warring couple’s children from the ugly things their parents want to say about each other. Couples, especially those with high public profiles, have also entered into such agreements voluntarily in order to protect their public personas, their businesses and their brands.

However, non-disparagement orders have come under fire from a lot of different people when they seem to reach beyond the court’s duty to protect the best interests of the children. In other words, if the non-disparagement order only tells the parents that they cannot make negative or hurtful comments about each other either to the children or within their hearing, that’s fine – but it’s not necessarily acceptable to go further.

Court reactions to challenges have been mixed. In Indiana, for example, an appeals court held that an order prohibiting disparaging comments about an ex-spouse in front of “anyone,” not just the couple’s children, was an unfair restriction on free speech. There was a similar ruling in Arizona regarding a spouse’s online ranting.

However, Massachusetts took another approach: After one spouse complained about the other’s “running commentary” on their divorce proceedings to their rabbi and entire synagogue, a court ruled that all non-disparagement clauses are unconstitutional.

What does this mean for you? Well, a non-disparagement agreement or order can help keep a divorce more civilized and ease tensions considerably, but it should probably be narrowly construed so that it doesn’t restrict all negative speech – just any that might make it to the eyes or ears of your children.

There are tons of issues that have to be considered in any divorce, not the least of which is the best way to protect both your children and your reputation. Experienced legal guidance can help.