Non-Disparagement Clauses: The Tooth Fairy Story and Other Times to Bite Your Tongue

talking bad about your exBy Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

They had five teeth between them, in a sandwich bag tucked amid sweatshirts and socks. Mom always sent them with extra, even in the summertime, as if Dad hadn’t enough. He did. “What’s that?” he said, tugging at the bag. The teeth jingled. “Mommy says the Tooth Fairy won’t come to her house because she’s too poor,” they replied, yanking the bag out and plopping it on the bedroom pillows. “She said we should bring these to your house because the Tooth Fairy likes people with money.”

Will was so upset when he told me this story, his face turned red and he started drumming his fingers pointedly against my desk. The pens clanked. “What did you say?” I asked.

The temptation: “Your mother’s a no-good-sunnuva . . .  a liar and a cheapskate.”

The reality: “I didn’t say anything.”

Good. There’s a war of words waging between exes in divorce cases, sometimes subtle like the Tooth Fairy story, 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.


What is a non-disparagement clause?

What’s to stop your ex from stringing a line of swear words in front of your name? More than most non-lawyers think. Under the circumstances, you may have an action for defamation, libel or slander. These are lawsuits for defaming your name without justification in written or spoken communication. However, unless the circumstances are particularly devastating (e.g., your ex spread so many rumors about you not a boss in your town or the next five will hire you), or you are willing to pay a lawyer a pretty penny just for the cause, these lawsuits are unhelpful tools for solving the problem. They cost more than they are worth, and they do not modify your custody order for your children.  Instead, for child custody cases, one of the most helpful legal tools is the non-disparagement clause.

A non-disparagement clause is a clause in a custody order that requires each parent to refrain from disparaging the other parent in their child’s presence. In other words, whenever the child is around, neither parent can say something that might impair the child’s relationship with and regard for the other parent. For example, neither parent could say something like, “Your father is a no-good-rotten-little . . .” or “Your mother doesn’t care what time you get home because she’s too busy with her boyfriend.”

The purposes for this clause are many – to encourage the child’s relationship with both parents, (see, e.g., MCL 722.27a) to keep the parents’ personal squabbles between them, not between them with their child stuck in the middle, to give each parent a sense of security the other is not planting seeds of hatred during parenting time (e.g., “You don’t want to go to Daddy’s house anymore, do you?”) are a few examples. The theory is, without those nasty comments, the child and the parent are more likely to bond, free from the other parent’s personal anger.


Note: This is Part 1 of a three-part series. Part 2 reviews what a non-disparagement clause looks like. Part 3 discussed options to enforce the clause.


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.

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