By Jennifer M. Paine
Attorney, Cordell & Cordell, P.C., Detroit office
There’s a war of words waging between exes in divorce cases, sometimes subtle, sometimes blatant and yelling loud as can be. They fight over school, sports, new girlfriends and boyfriends, stepmoms and stepdads, who pays what share for summer camp, whether McDonald’s is dinner or a treat, everything under the sun and then some.
It is so easy to snap back. But that old adage, “You better bite your tongue” is never truer. What you say will come back to against you. And your children.
You should consider a non-disparagement clause instead.
How Do I Enforce It?
Will you have to make like 007 and carry a hidden microphone, desperate to catch your ex in a disparaging rant? No, most of the time.
Before you record any conversation, thoroughly discuss your reasons with an attorney or you could commit a crime. Federal and state laws prohibit surprisingly more surveillance than most people think. For example, the Federal Wiretapping Act (FWA) prohibits most methods for recording conversations. The pertinent part of the FWA is 18 USC § 2511(1), which provides that violations occur when one:
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when– (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce.
The FWA does contain an important exception commonly known as “the consent exception” or “the participant rule.” According to 18 USC § 2511, it is not unlawful under the FWA for most of us to intercept a wire, oral, or electronic communication if we are a party to the communication or where one of the parties to the communication has given us prior consent to the interception.
State privacy laws also may apply, however, and you could run afoul of them if you record conversations.
Therefore, unless absolutely necessary and then only after discussing it with an attorney, avoid recording conversations with your ex. Instead, bring a trusty witness who can credibly testify that your ex said something disparaging about you. Be sure to keep a journal of disparaging remarks, too. This will help you track their frequency and severity, and it will refresh your memory if you pursue court action. An isolated remark one stressful day is probably not enough for court action, but a series of remarks traced in your journal, or one grave remark on a special day, may be.
Most of all, do not be afraid to take court action. Non-disparagement clauses are court orders designed to preserve your relationship with your children. The powers of contempt of court support them, and they support one of the most important constitutional rights in the United States: our rights to our children. Consider these enforcement options:
Motion to Clarify: Lofty non-disparagement clauses can be ambiguous. Attorneys have a habit of using more words than necessary (e.g., “You shall not say, utter, speak, indicate . . .”) particularly when they have to write a clause pleasing to everybody. For example, does “Do not disparage the other party or the party’s decisions” include a second wife an ex-husband decides to marry or just the decision to remarry? If your clause is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a clause meant when issued, according to the circumstances at that time. That is, what did the clause mean on the date the court granted the divorce? What did the court and the parties contemplate at that time? If you are certain that your interpretation is correct, try this motion.
Motion to Modify: What if your interpretation of the clause is incorrect? Ask your court to modify it. A motion to modify asks the court to change a clause based on circumstances that have occurred since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for modifications. In general, there must be a “change in circumstances” or “proper cause” since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, terms, like non-disparagement clauses, should change as the child’s interests and the parents’ needs change.
Motion for Contempt: If your ex does disregard your clause, ask the court to compel her action and to hold her in contempt for not acting before. A motion to compel asks the court to bring the opposing party before the court to explain why he or she disregards the court’s orders and to impose an appropriate remedy, which may include an order requiring action, contempt sanctions, fines, jail-time, costs attorney fees, family therapy or loss of parenting time.
Most of all, do not snap an angry or curse-laden or crazy or otherwise curt comment back. Stoop to that disparaging level, and you could be the one in contempt. Better to keep your children’s parenting time and bite your tongue.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.