Any divorce is fraught with emotion, but some divorcing spouses are less able to control their emotions than others and are filled with anger, frustration, bitterness, and even hatred for the person they once loved. If you find yourself spiraling out of control, find a family member (but not one of your children) or trusted friend to vent to, or better yet, a professional therapist or counselor. Nearly every divorcing spouse will benefit from individual therapy and a safe place to discuss emotions and difficulties inherent in the divorce process.
But what can you do if it’s not you but your spouse spiraling out of control, letting their emotions get the better of them, and beginning to air your divorce online? What if they post specifics about your marriage or divorce, or personal attacks, on social media where your friends and family will see them (and maybe even comment)? The answer depends on your particular circumstances.
If You and Your Spouse Have Children, You May Be Able to Obtain a Non-Disparagement Order (But Try to Get Your Spouse to Agree to It!)
Prior to 2020, non-disparagement orders were commonplace in divorce proceedings and were both agreed to between divorcing parties and ordered by judges. Non-disparagement orders typically require both spouses to refrain from disparaging the other spouse online, in the presence of the children, or within the children’s hearing, and to refrain from condoning any third party (such as a friend or family member) disparaging the other spouse within the children’s hearing. Then came Shak v. Shak, 484 Mass. 658 (2020), which made obtaining a non-disparagement order significantly harder than it was previously if the other spouse doesn’t agree to it because of how the Supreme Judicial Court interpreted our rights to freedom of speech contained in the First Amendment to the Constitution.
In Shak, a Probate and Family Court judge entered a non-disparagement order prohibiting the parties, who were divorcing and had a one-year-old child, from disparaging the other or permitting a third party to do so within the child’s hearing and from “post[ing] any comments, solicitations, references or other information regarding this litigation on social media.” The wife filed a complaint for contempt, asserting that the husband had violated the non-disparagement order by publishing social media posts and commentary disparaging her and detailing specifics of the litigation and by sharing those posts with the mother’s rabbi and other members of her religious community, as well as business clients. A different judge issued a revised disparagement order, which was more limited than the prior order, and reported two questions of law to the Appeals Court:
- First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech?
- Second, are non-disparagement orders issued in the context of divorce litigation enforceable and not an impermissible restraint on free speech when there is a compelling public interest in protecting the best interests of minor children?
The Supreme Judicial Court considered these questions and whether non-disparagement orders constituted an unconstitutional prior restraint on speech without a compelling state interest justifying the restraint. The Court noted that there is a compelling state interest in protecting children from being exposed to disparagement between their parents but noted that the prior restraint on speech was not justified in the circumstances of this particular case. In the Shak case, “[n]o showing was made linking communications by either parent to any grave, imminent harm to the child. The mother presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt. As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.”
This suggests that, in order to obtain a non-disparagement order from a judge, a divorcing spouse would need to present specific evidence as to their child’s particular vulnerabilities, possibly including evidence of previous harm to the child resulting from exposure to conflict between her parents, or even expert testimony on the issue. This could require significant costs in legal and expert fees. However, the Supreme Judicial Court also noted in Shak that “our ruling does not impact non-disparagement agreements that parties enter into voluntarily.” In other words, if your spouse agrees not to disparage you in a writing signed by both of you and incorporated into a Court Order or Judgment, such agreement should be enforceable in Court.
Practically speaking, if your spouse is hell-bent on disparaging you online, they are unlikely to enter into an agreement stating they will refrain from disparaging you. So, if your divorce starts out fairly amicably, but you’re worried about possible disparagement in the future given your knowledge of your spouse, or if your communications with your spouse are taking a turn for the worse and becoming contentious, you should try to get them to agree to this in writing early. The non-disparagement order will need to be reciprocal (would you agree not to disparage your spouse if they could still disparage you?). You shouldn’t wait until the disparagement has gone on for some time before trying to get an agreement because it will be much harder to get your spouse to agree if the disparagement is their habit.
If You and Your Spouse Have No Children, Your Spouse May Agree to a Non-Disparagement Order (Or Consider a Harassment Prevention Order)
It is clear from Shak that the only compelling state interest a judge will likely consider in determining whether the prior restraint on speech in a non-disparagement order is permissible is children’s interests in being protected from exposure to parental conflict. Accordingly, if you don’t have children, you won’t be able to obtain a non-disparagement order from a judge. Your spouse might still agree not to disparage you online, however. But what if they won’t? One possible solution, which the Supreme Judicial Court acknowledged in Shak, is a Harassment Prevention Order. This is an order under G.L. c. 258E, which is designed to protect people from harassment, stalking, or sexual assault.
Harassment Prevention Orders require you to prove that the other person has committed three or more acts of harassment that were:
- Willful and malicious; (This means they were done on purpose and for reasons of cruelty, hostility, or revenge.)
- Aimed at you; and
- Intended to cause you fear, intimidation, abuse, or damage to property. (“Abuse” means causing or attempting to cause physical harm or causing fear of imminent serious physical harm.)
You must also prove that the acts of harassment did, in fact, cause you fear, intimidation, abuse, or damage to property.
Alternatively, you can obtain a Harassment Prevention Order by proving that your spouse forced you to have sex or threatened you into having sex at least once; or that they committed one of a variety of crimes against you, such as indecent assault and battery, rape, criminal stalking or criminal harassment.
Practically speaking, Harassment Prevention Orders can be difficult to obtain if they’re based on words rather than actions because three or more acts are required. However, if your spouse’s activity online meets the requirements in G.L. c. 258E, this may be an option to prevent the online disparagement from continuing.
Make Sure Your Non-Disparagement Order is Clear
In order to be enforceable in Court, any Order or Judgment must be clear and unequivocal, and the violation of that Order or Judgment must be equally clear and unequivocal. The language in any non-disparagement order included in an agreement you enter with your spouse must therefore be very carefully drafted to ensure it is enforceable. Consult an experienced family law attorney to ensure that it is clear and enforceable so your spouse will be effectively prohibited from airing your dirty laundry in the divorce online.
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