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What is a Non-Disparagement Divorce Clause in Texas?

Sophia Merton
September 22, 2022

Are you worried that your soon-to-be ex will bad-mouth you to your kids after your divorce? If so, you might want to learn about the non-disparagement divorce clause in Texas.

This clause is a portion of your divorce settlement or custody agreement that states that neither party will make disparaging remarks about the other in the presence of the children.

Are you curious to learn more about why this might be a good idea in your divorce? Let's take a look at how the non-disparagement clause can be in the best interest of your children and more.

What Is a Non-Disparagement Divorce Clause in Texas?

A non-disparagement clause is a section of a contract that prevents involved parties from making negative or derogatory statements about the other.

man signing non-disparagement divorce clause in texas
If you are getting divorced and their are children involved in the marriage, you might consider adding a non-disparagement divorce clause in your final decree.

You can commonly find this type of clause in a number of different types of contracts, including:

  • Divorce decrees
  • Non-solicitation agreements
  • Employment agreements
  • Noncompete agreements
  • Termination contracts
  • Contractor agreements
  • Severance pay agreements

As you can see, non-disparagement clauses are often included in contracts that outline agreements having to do with business relationships. However, this type of clause is often also a part of divorce decrees when two people are getting divorced with children. You can also find non-disparagement clauses in child custody agreements in Texas.

When involved in family law matters, non-disparagement clauses aim to prohibit both parents from making negative comments about each other in front of their children. In some cases, the clause might be written so that both parents as well as other household members are prohibited from talking negatively about the other parent.

You might consider including a non-disparagement clause in your divorce or custody agreement if you are getting divorced with minor children. The purpose of this type of clause is to protect the best interest of your children as well as both parents.

When Do You Need a Non-Disparagement Clause?

Whether a non-disparagement clause is something you will want to include in your divorce or custody agreement has to do with your custody rights, possession, and access to your children.

mother with son on computer with nondisparagement clause
There are two different types of conservatorship in Texas: joint managing conservatorship and sole managing conservatorship.

There are two categories of child custody rights in Texas, which are:

  • Conservatorship
  • Possession and access

Conservatorship refers to the duties and rights of parents in relation to making decisions about important matters that impact their children. This can include the children's education, religion, healthcare, and more. There are two different types of conservatorship in Texas:

  • Joint managing conservatorship: Both parents can make major decisions jointly about matters that impact their children
  • Sole managing conservatorship: Only one parent has the right to make decisions about matters that impact their children

The visitation rights of parents in Texas are referred to as possession and access. Parents have the option to choose a standard possession and access schedule or an extended standard possession and access schedule. They also can choose to create a custom schedule to suit their particular needs so long as they are able to reach an agreement.

The primary consideration of Texas courts is always the best interest of the child when it comes to divorce and custody cases. For this reason, the agreement and schedule need to be based on what is best for the child.

When both parents share visitation rights, you might find that a non-disparagement clause is beneficial. This language in your contract can help make sure that neither parent is bad-mouthing the other in front of the children.

Wondering how custody is determined in Texas? Learn about who gets the kids after a Texas divorce here.

How Can Non-Disparagement Clauses Help Your Custody Arrangement?

When one parent disparages the other in front of their children, it can be considered a type of custodial interference. This type of behavior can produce distrust and tension between the two parents, which can make it much more difficult to effectively share in the responsibilities of parenting.

father with daughter outside after nondisparagement divorce clause
Including a nondisparagement clause in your divorce settlement and decree can ensure that the well-being of the children is the top priority.

Children can also be deeply impacted by parents bad-mouthing one another. When you include a non-disparagement clause, it can help ensure that the child has a positive experience with both parents. The last thing that you want is for your kids to feel like they have to pick sides between their parents or feel alienated from one of their parents.

What If One of Us Violates the Agreement?

Confirming that one party actually violated a non-disparagement clause can be challenging. Evidence of a pattern is necessary, which means that one passing comment won't be enough for a court to take any action. Going back to court can be difficult for the children as well, so it's worth considering the severity of the disparagement, whether it negatively impacted your children, and whether you might be able to receive a favorable outcome through the court system.

How a court will respond to a parent that has repeatedly breached the contract between themselves and another parent depends on the violations and behaviors involved. In some cases, the court might just give them a warning that harsher penalties could be coming down the line, such as losing their parenting time.

Right after you get divorced, it can be difficult to hold back your feelings about your ex in front of your kids. However, both parents upholding the non-disparagement clause of an agreement can help reduce the stress and negative impact of divorce on your kids.

How Are Non-Disparagement Clauses Enforced?

When two parties sign a properly written non-disparagement clause, the agreement is legally binding. However, actually enforcing them can be quite difficult. The reason for this is that the allegations of a non-disparagement clause violation often devolve into a back and forth “he said she said” scenario, making it very hard to determine with any certainty who is in the right.

One parent can take the matter to court if they feel that their co-parent has disparaged them in front of the children. Usually, though, a judge won’t impose serious penalties or take away the visitation rights of the non-compliant parent. This is particularly true if there isn’t enough evidence to prove that the parent broke the contract.

If you're worried about the behavior of your spouse after you get divorced, you're probably also concerned that they will try and pull something funny during the divorce. It can be useful to familiarize yourself with some of the common sneaky divorce tactics to know what you should be keeping an eye out for.

What If My Co-Parent Disparages Me While a Custody or Divorce Case Is On-Going?

If you are able to present documented evidence that your co-parent disparaged you in front of the children while your case is ongoing, the other parent could receive less parenting time than they would have otherwise. You will want to talk to your lawyer about whether or not you have substantial evidence of this type of occurrence, as they will help you understand your options and assist you in understanding the best course of action.

Wondering if your prenup already outlines what will happen with child custody and support? In Texas, a prenuptial agreement can't set the terms for future child custody and support. You can learn more about premarital agreements in Texas here.

What to Do If Your Ex Violates a Non-Disparagement Divorce Clause

If your ex has been violating the non-disparagement divorce clause that you both signed, there are a number of steps you will want to take.

Gather Evidence

The first step is to gather any evidence you can that shows that your ex violated the non-disparagement divorce clause in your agreement.

woman looking at text message evidence of breach of nondisparagement clause
You'll need to provide proof of your co-parent's pattern of disparaging comments for a court to take any action.

Some examples of this type of proof includes:

  • Voicemails or text messages from your ex to your children
  • Written statements from your kids about things your ex said in front of them
  • Negative social media posts about you that your kids could potentially be exposed to
  • Eyewitness accounts from other people that were present for the disparaging comments

One-off comments typically aren’t enough when it comes to proving that your ex violated a non-disparagement clause. There is too much wiggle room with this type of thing, where the comment could have been misheard, misunderstood, taken out of context, or said in jest. In order for a court to take the accusation of breach of contract seriously, they will need to see evidence that there is a clear history of your ex making disparaging comments with the children present.

Look At the Language in the Contract

The next step is to compare the evidence that you were able to collect to the specific language in the divorce or custody order. This will help you understand whether the negative comments that your ex-spouse is making fit within the boundaries of the agreement you both signed.

In order for it to be worth pursuing at all, you will need to make sure that the legal verbiage that is in the divorce order matches up with the evidence and proof you've gathered. If it doesn't, your ex could make the argument that you don't have sufficient evidence to enforce the clause because it doesn't align completely with the language of the divorce order.

Talk to Your Lawyer

Once you've compared the language of the disparagement clause with the evidence you've gathered, you can determine whether it's worth moving forward with your claim that your ex violated your agreement.

If you feel the evidence aligns with the language, it's time to talk to your family law attorney. In order to receive a favorable outcome, you'll want to have the tools necessary to present the best possible argument in front of the court.

A family law attorney will be able to help you:

  • Closely review the original divorce order terms and help you understand what they mean
  • Consider whether your evidence of non-disparagement is valid
  • Determine whether your evidence is valid in relation to the non-disparagement clause in your divorce order
  • Enforce the divorce order as it was originally written and represent you in court to help you do so

When you talk to your lawyer, you can ask them how long you expect the process to take and what the different possible outcomes are. This can help you gauge whether it's worth taking the non-disparagement breach of contract to court. In some cases, you might find that the potential outcomes are not particularly favorable and it isn't worth persuing for the sake of the children's well-being.

The Negative Impact of Parental Denigration on Children

Researchers have been studying the impact of parental conflict on children for many decades at this point, and perhaps the most toxic aspect of divorce for children is conflict between their parents. Consistently, studies have found that conflict before, during, and after the separation of parents is “highly predictive of children’s psychological and emotional well-being.”

For example, parental conflict has been associated with a number of different issues in children, including:

  • Depression
  • Anxiety
  • Emotional insecurity
  • Antisocial behavior
  • Delinquency
  • Conduct problems

In addition to developing emotional disorders, children whose parents fight frequently can suffer from “more subtle internal symptoms of distress” such as feelings of blame and loss.

Some parents will put their children in the middle of their disagreements, which can mean that the kids are taking on roles that are inappropriate for their stage of development. They might find themselves trying to protect a distraught parent, serving as a confidant, or trying to resolve their parents’ fights.

These issues can also crop up when a parent purposefully denigrates the other parent in front of their children, which is another problematic pattern.

Parental Alienation and Denigration

In some unfortunate cases, a parent will try and convince their kid that their other parent should be rejected. There is a lot of controversy about the concept of parental alienation, but it doesn’t take a rocket scientist to recognize that this type of activity could be very harmful to a child.

According to a number of studies, the following points were found regarding parental alienation in families:

  • People who reported more frequent parental denigration said they were less close to their parents
  • People who reported more frequent parental denigration experienced increased feelings of isolation
  • People who reported more frequent parental denigration experienced poorer quality of communication with parents

Another study found that parental denigration is usually a two-way street. When denigration is present, it is largely reciprocal. When both parents are talking badly about the other, studies have found that children feel less close to both parents along with less mutual trust, increased feelings of isolation from both parents, and poorer communication quality.

While this type of behavior seems to put distance between children and both of their parents, the study found that the “denigrator parent” is actually the one that children most often feel especially distanced from.

Children who have been raised in environments that involved parental denigration are reported to have:

  • Higher levels of depressive symptoms
  • More frequent parental conflict
  • Less satisfaction with life
  • More painful feelings about the divorce, including feelings of maternal or paternal blame as well as loss and abandonment
  • Increased likelihood of viewing life through the lens of divorce

If you are tempted to speak negatively about your co-parent in front of your children, it’s worth noting that children tend to blame the divorce on the person who is doing the trash-talking, not the one who is being denigrated.

Tips For Co-Parents in Texas

Divorce is an emotional time, but it’s important to be conscious of what you are saying about your co-parent in front of your children. Not only does speaking negatively about them increase the likelihood that your children will experience a number of negative mental health effects, but it can also damage your relationship with them.

    • Create a realistic and flexible parenting plan: This is essential for ensuring that both parents have a clear understanding of when they are able to spend time with their children. It can also help children feel like they have a routine and it can provide a resource you can refer to if you get into a conflict.
  • Don’t make your kids the messenger: Create a system of communication with your co-parent and don’t rely on kids to relay messages from one parent to the other.
  • Keep children out of the middle of conflict: If the two of you are in a disagreement, make sure to leave your kids out of it. It can be extremely stressful for children to feel like they are caught in the middle between their parents.
  • Set boundaries: It’s a good idea to reach an agreement about how frequently you will communicate. It’s also best to agree to keep your communication limited to issues that relate to the children.
  • Discuss your co-parent with kindness in front of your kids: Children can feel very hurt and sad when their parents put each other down. On top of that, this type of behavior often backfires and makes the child feel less close to you and closer to the other parent.
  • Keep your focus on the best interest of your child: When difficulties crop up as a part of co-parenting, try to remember that the primary focus is the best interest of your child’s well-being.

Co-parenting can be difficult, but it’s ultimately best for children to have a positive relationship with both parents.

Other Types of Child Custody Violations

There are a number of different violations that can occur in relation to child custody agreements in addition to a breach of a non-disparagement clause. It's worth understanding the types of child custody violations as the consequences of violating one of them can be quite serious.

  • Refusing access to the child to the other parent
  • Not showing up on time for visitation
  • Moving to another city, state, or country without first receiving permission from the court
  • Interfering with the visitation rights of the other parent
  • Having a third party pick up the children and drop them off
  • Not allowing the other parent visitation time because they haven't been paying their child support

One of the most common ways that child custody orders are enforced is when the parent that violated the order is held in contempt of court. If a parent doesn't fulfill their child support obligations or violates the terms of their custody order in Texas, they can be found in contempt. However, sufficient evidence is necessary.

They also might not hold a parent in contempt if there are specific provisions missing in the order relating to the following information:

  • The precise locations where visits and exchanges occur
  • The identities of both the parents and the children
  • The times and dates of possession and visitation
  • Prohibited activities and behaviors, such as moving out of the city, state, or country with the children

If a parent tries to get in the way of the other parent's possession or visitation rights, a court is probably going to find them in contempt of court. If the other parent made it possible for the violating parent to comply or they encouraged the violation, the court won't hold the violating parent in contempt.

The penalties of being held in contempt of court include up to six months in county jail and up to $500 in fines. If you are being accused of violating a child custody order, you will most likely want to work with a lawyer to help provide your legal defense.

Are You Getting Divorced in Texas?

Getting divorced is never easy, and it's particularly difficult when there are children involved. Divorce can be very hard on children even when everything is fairly amicable. When divorcing parents are caught in a constant state of conflict, it can take a serious toll on the well-being of children.

For this reason, adding a nondisparagement clause to your divorce agreement is worth considering. Even if you feel that you and your ex are getting along well now, it can still be useful to outline boundaries in writing to help keep the best interest of the kids front and center.

If you're thinking about incorporating this clause into your agreement, it's a good idea to talk to your lawyer. The language of legal contracts is very important, and you'll want to make sure that the agreement you're drafting serves your desired purpose.

If you're getting divorced in Texas, it can be useful to learn as much as possible about the entire process. If you're searching for more resources about Texas family law, be sure to check out the rest of our blog at TexasDivorceLaws.org.

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Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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