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Social Media War Between Litigants

Emotions run high during a divorce, no doubt. Sometimes those same emotions get parties so worked up, they find social media to be the best outlet. Looks like some people allow social media to be their own therapy session so they can vent their emotions and feelings, especially regarding the status of their proceedings. However, there are serious repercussions in doing so.

“But Free Speech!”

Yes, you are correct. You have a First Amendment right to free speech but realize that right is not absolute! If there is a compelling state interest in prohibiting you from such conduct, your speech may be prohibited.

Recently, in Shak v. Shak, a Massachusetts case, Husband decided to use Facebook as an outlet and made snarky remarks about the soon to be ex-Wife and the status of the proceedings. Not one, but two judges made “nondisparagement orders” which prohibited Husband from such conduct. The case went up to the Massachusetts Supreme Court where they ruled those non-disparagement orders were unconstitutional.

Hold on though! As persuasive as that case may be, you should still be careful. That case specifically ruled that way because the child involved was only one year old. The compelling state interest argued to attempt to justify the disparagement order was the “physical and psychological well-being” of the minor child. However, because the child was too young to read the social media posts, too young to understand the post or the ramifications it had, that compelling state interest was not persuasive. Therefore, it is possible the outcome of that case could have shifted had there been an older child involved.

“Good Thing I Do Not Have Kids!”

Wait! You are still not in the clear. Although your family court judge may not be able to make those nondisparagement orders, the other party has other alternatives such as seeking a DVRO - domestic violence restraining order. DVROs can in fact restrict speech that is intended to harass, threaten, or intimate a domestic violence victim. The other party also has other alternatives such as seeking a civil harassment restraining order or even seeking civil damages for intentional infliction of emotional distress or defamation. Remember, actions have consequences, so be careful what you put out there on social media.

If you happen to be a party where disparaging comments are being made about you, in conjunction with the alternatives noted above, remember that parties are able to voluntarily enter into nondisparagement agreements, which can later be enforced, if violated. Additionally, if children are involved in the proceedings, rest assured that judges are considering the best interest of the children and such behavior by the other parent will most likely be factored into the custody determinations.