Reversal: Divorce court violated parents’ 1st Amendment rights via ‘non-disparagement clause’

A non-disparagement clause drafted into a couple’s divorce order to prevent the parents from talking badly about each other even outside of the presence of their child was an unconstitutional prior restraint on speech, the Court of Appeals of Indiana ruled in a partial reversal.

After several years of marriage, wife Yaima Israel filed for divorce from husband Jamie Israel in January 2019.

Following a final dissolution hearing, the Marion Superior Court awarded Jamie 56% of the total net martial estate, or $332,108.36, while Yaima was awarded 44%, or $261,238.36. The parties were ordered to pay their own attorney fees.

The trial court also concluded joint legal custody was an “unworkable” option based on the parents’ inability to agree about the child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

Finally, the court’s final decree contained a non-disparagement clause preventing either parent from “making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone,” including but not limited to “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

Jamie appealed, and the Court of Appeals affirmed that the trial court did not err in valuing the marital residence and personal property of the marriage, nor in dividing the retirement accounts. The COA also found no abuse of the trial court’s discretion in awarding Yaima sole legal custody, or in denying Jamie’s request for an award of attorney fees.

“However, we agree with Father that the non-disparagement clause in this case goes far beyond furthering that compelling interest to the extent it prohibits the parents from ‘making disparaging comments’ about the other in the presence of ‘anyone’ even when Child is not present,” Judge L. Mark Bailey wrote, referencing the compelling state interest in protecting the child’s best interests. “… Thus, the following portion of the first sentence of the non-disparagement clause is an unconstitutional prior restraint and must be stricken: ‘… friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone.’”

Finding the non-disparagement clause to be overbroad and an unconstitutional prior restraint on speech, the COA reversed on that point alone in Jamie Israel v. Yaima Israel, 21A-DC-1063, remanding with instructions to modify the non-disparagement clause pursuant to the appellate opinion.

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