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Non-Disparagement Clause Ruled Unconstitutional Under 1A

The First Amendment is one of the most visible and least understood constitutional rights that we have. Essentially, it prevents the government from issuing orders that curtail the free speech of citizens or companies. The purpose of the First Amendment was to protect unpopular speech and prevent political repression by the government against the press. However, today we are learning that free speech is a bit of a double-edged sword as it can be used by malicious parties to create chaos and disruption.

Why are we talking about free speech in a divorce blog? Well, here’s the back story. After a messy divorce, the court ordered as part of the divorce settlement that neither parent could “disparage” the other in texts, online, or by making negative comments about the other parent. It didn’t matter where the parents were, any negative comment directed at the other parent was considered a violation of the divorce order and potentially could land one of the spouses with a contempt of court charge.

The father appealed the court’s ruling on multiple matters and lost every one of those rulings with the exception of one. The court ruled that the provision that prevented the parents from disparaging one another outside the presence of the child went beyond the scope of what the court could enforce. Under the First Amendment, the ruling was considered illegal because it placed the government in a position of restricting the speech of a free citizen.

Does That Mean I Can Disparage My Ex-Spouse?

The court did not strike the entire provision. Instead, it only struck the part concerning the restriction of speech in front of random people. While the parents remained enjoined from disparaging one another in front of their children, they could, if they chose, disparage one another in a therapy session, at work, or even to the child’s teachers. 

The court ruled that the clause was overly broad and could not be enforced by the court because it violated the First Amendment. However, the court retained the right to enforce non-disparagement clauses that focus solely on the children because that tends to cause psychological harm to the child and is generally meant to provoke a result that is at odds with the court’s stance.

Courts generally believe that children benefit from having both parents in their life. In this case, the parents were not able to coparent together. The wife was awarded legal custody of the children, so while the father may have a visitation schedule, he would not be able to make legal decisions concerning the children. This includes making decisions regarding health care choices, school choices, and more. Mostly, however, joint custody remains the standard in these cases. When a parent attempts to cause the child to hate the other parent, the court takes umbrage with the tactic.

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Chris Arrington represents the interests of divorcing couples near Avon, Indiana. Call today to discuss your situation in more detail and we can begin discussing your next moves immediately. 

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