Non-Disparagement Clauses: What Do They Look Like?

talking bad about your exBy 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.

In Part 1 you read about “What is a non-disparagement clause?” This part examines “What does a non-disparagement clause look like?” Part 3 discussed options to enforce the clause.

 

What does a non-disparagement clause look like?

Non-disparagement clauses are as varied as the attorneys writing them and the families needing them. At a minimum, they must be sufficiently clear to apprise each parent of what conduct is not allowed, but you can otherwise be creative with yours.

A general non-disparagement clause might go something like this:

“Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”

But what if you and your ex-spouse rely heavily on electronic communication, e-mails or texts?:

“Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child’s high regard for the other party.”

And what if your ex-spouse despises your new spouse?:

“Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party. This means, for example and not by way of limitation, neither party shall say or do anything about or toward a third party in the child’s presence that may estrange the child from the other party or impair the child’s high regard for the other party. ”

Be sure to discuss any language with an attorney before you include it in your decree. You must understand it, your soon-to-be-ex must understand it, and it must withstand all of the what-ifs. A big what-if is the judge who will accept your decree. You must be sufficiently vague to pass judicial scrutiny (no crazy clauses about having to pass a purple pencil to the person entitled to speak, as if you were in student government again, and certainly no illegal clauses) but sufficiently clear to know what you and your ex should not do and when methods of enforcement you can pursue.

 

Note: This is Part 3 of a three-part series. In Part 1 you read about “What is a non-disparagement clause?” This part examines “What does a non-disparagement clause look 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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One comment on “Non-Disparagement Clauses: What Do They Look Like?

    “Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”
    My parents, my child’s grandparents are highly dysfunctional. They cut all communication with me after I tried to address specific issues I had with their behavior around my daughter over 2 years ago. They’ve aligned with her father in order to go around me entirely. I’m in Oregon and have sole legal custody. During his parenting time my parents invited him, his fiance, other child and my daughter to their house, where I grew up, to open Christmas presents for her, instead of me and my son. I found cards my mom sent to her dad’s house, instead of here where she lives, hidden in her room. She feels she needs to keep secrets from me. Interacting with my parents like this certainly impairs here ability to hold me in high regard correct? We’re currently modifying his parenting time and it was his attorney that including a much vaguer non disparagement clause. However the wording seems to keep me from being able to explain to my daughter how wrong their behavior is. Any advice greatly appreciated. I’m outgunned.

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