It’s pretty typical in the midst of a New Jersey divorce for those involved to have few kind words to spare for their estranged spouse. But if the bad-mouthing is constant, public, or damaging, is it possible that the court could intervene?

The short answer is: Maybe.

As our Somerset divorce attorneys can explain, courts don’t lightly gloss over First Amendment rights protecting free speech. However, these protections don’t extend to speech that crosses the line into harassment or threats. A New Jersey Family Court judge in particular might intervene if the speech was damaging to any children involved.

If you anticipate that bad-mouthing by your ex could be an issue in an imminent or pending divorce or child custody case, you could consider requesting a non-disparagement clause.

What Are Non-Disparagement Clauses?

A non-disparagement clause in a New Jersey divorce agreement or parenting plan is a provision that requires each party to refrain from disparaging the other - publicly, to their children, or to other third parties.

That might seem simple enough. However, if they are going to work and be enforceable, they need to be carefully drafted, closely tailored to the situation, and reasonable.

It’s one thing to say co-parents shouldn’t speak poorly of one another in front of the kids. But what about on social media? To work colleagues? Mutual friends? In-laws? Depending on the kids’ age, parties’ prominence, etc., any of these could potentially get back to the children.

And what exactly does it mean to “disparage” another person? What if the comments are truthful?

How long should a non-disparagement clause be in place? We all understand that a child might be mature enough to hear things at 15 that would be overwhelming at 7 or 8. Should such an agreement be indefinitely binding?

What if you don’t have kids? How likely is the court to agree to subdue either party’s right to free speech? (Short answer on this one: Not very likely unless you both agree to the terms, which will likely mean compromising on other aspects of the divorce, such as property division.)

All of these concerns should be raised and addressed before anyone asks a judge to sign off on an agreement. One of the biggest issues with non-disparagement clauses is that if they are written too broadly, they can run afoul of First Amendment laws or be otherwise unenforceable. That’s why working with an experienced New Jersey divorce attorney is so important.

How Can Non-Disparagement Clauses Be Enforced?

As noted by the American Association of Matrimonial Lawyers, enforcement of disparagement clauses in New Jersey Family Court cases typically happens one of three ways:

• Ask the Family Court for a parenting plan modification due to a change of circumstances since the last hearing.
• File a motion to modify the plan that includes updates to certain terms in the non-disparagement clause.
• File a motion for contempt by the other party for failure to abide by the terms of the non-disparagement clause.

For the most part, clauses that are related expressly to children have a greater likelihood of being effectively enforced than those related to third-party communications. Courts will use the standard of a child’s best interests in upholding and enforcing such provisions.

As an example, many courts across the country still lean on a 1991 landmark ruling by the Florida Supreme Court essentially holding that a parent’s First Amendment right to free expression was “merely incidental” to the right of the other parent to have a relationship with their kids. The Ccurt also ruled in Schutz v. Schutz that the government has an important role to play (“parens patria interest”) in assisting with the creation of those relationships where active damage has been done due to disparagement by the other parent.

That’s not a guarantee of success in making such a request. However, providing evidence that your ex’s disparagement of you - particularly to your kids - has had measurable damage to your relationship with your child can be a powerful argument the Family Court is likely to take into careful consideration.

Call our New Jersey divorce attorneys at (732) 810-0034 or use our online form to request your free & confidential consultation!