Non-Disparagement Clauses in Divorce: To Tweet or Not to Tweet

It has become a common habit to air our day-to-day successes and frustrations to the public audience on social media websites like Twitter and Facebook. As users of these social media websites, we very rarely think about the long-term effect that our published words have on our readers, and more specifically, our friends and families.

 non-disparagement clause IMAGEDivorce can be an extremely difficult time for not only the couple involved, but the friends, relatives, and more importantly, the children of the couple who watch as their family unit splits. Social media networks can serve as a diary, where we let our friends and family know about our positive and negative feelings throughout the day; we find solace by discussing our hardships, and receive affirmation and support from our readers. Though social media may be a useful tool in the healing process by providing our loved ones a venue to send their support through emails, texts, and messages, it can also be a prime forum for hurt, anger, and the revelation of confidential, marital secrets. As a result, social media has the possibility to create irrevocable harm, emotional and legal, if we do not utilize great responsibility in the words that we publish, post, and reveal to the masses.

 Agreeing to Be Nice

In July 2013,NBA basketball player Steve Nash’s divorce brought to light the issue of the use of non-disparagement clauses in divorce agreements and an individual’s First Amendment right to freedom of speech. The Arizona Court of Appeals upheld the non-disparagement clause in the joint custody agreement between Steve Nash, and his former wife, Alejandra Amarilla Menrath, requiring that any remarks made by either Nash or Menrath must be respectful and non-disparaging.

 The purpose of the clause was to protect their three children from any mudslinging between the parents and attempt to make the divorce between Nash and Menrath as easy and constructive as possible. However, after the joint custody agreement was signed, Menrath allegedly tweeted disparaging comments made about Nash, which led to a court fight. The Maricopa County Superior Court issued an order barring either party from publishing disparaging comments on social media websites. Menrath claimed that the order violated her first Amendment rights. The Arizona Appellate Court affirmed the order, arguing that both Nash and Menrath entered into the joint custody agreement voluntarily, and therefore the non-disparagement clause was not a violation of their First Amendment rights.

This noteworthy case, among others involving the use of non-disparagement clauses, reflect on whether or not these types of clauses included in a divorce settlement can have the intended positive effect or limit a spouse’s right to open and free expression regarding any aspect of the divorce.

The Benefits of Social Media During Times of Divorce

In a recent Huffington Post article, the author purports that social media, if used properly, can actually have a positive effect on the user. The Huffington Post article provides a few ideas on how to make social media an asset when going through a divorce, rather than a forum for dirty laundry.

 For example, social media can provide instant access to information and tips on how to handle the divorce process, custody issues, spousal support, how and when to discuss a divorce with your kids, and can connect users to fellow divorcees as an anonymous support system. The article also believes social media can be a great way to keep an eye on your children–if custody involves distance, it can be a wonderful way to stay in contact with the day-to-day activities of your family. Finally, the article states that social media can improve communication between former spouses who can relay important information to each other in a neutral setting where emotions can remain in check. An open, positive, respectful exchange of ideas and information between a couple going through a divorce, no matter the format, can help encourage a positive and optimistic post-divorce transition not only for the couple, but for their children caught in the middle.

The use of non-disparagement clauses within divorce settlement agreements can be a difficult and complicated decision. An experienced DuPage divorce attorney may be able to answer any questions on the use of non-disparagement clauses, their long and short-term effect on the divorce and your family, and whether and the extent that you might want to incorporate one into your settlement agreement. Contact our law office today if you are considering a divorce.

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