Texas Divorce Laws

What to Do if Ex is Violating Non-Disparagement Divorce Clause in Texas

By:
Sophia Merton
Updated
August 26, 2022

Are you wondering what to do if your ex is violating the non-disparagement divorce clause in Texas?

This clause in divorce decrees or custody orders exists in order to protect your children from the potentially damaging effects of hearing one parent speak negatively about the other. Even though you and your ex aren’t continuing your romantic relationship, you have to maintain a positive relationship for the sake of your kids.

If your ex breaches the contract you signed, though, you might be wondering what steps you can take to enforce the clause.

Let’s take a look at what you need to know.

What Is a Non-Disparagement Divorce Clause?

In a child custody case or divorce, a non-disparagement clause is a clause that prohibits parents from negatively speaking about the other parent in front of their kids. In some cases, this clause might also apply to extended family members as well.

person looking at contract in binder

A non-disparagement clause can be included in marital settlement agreements or custody orders to prohibit parents from bad-mouthing their ex in front of their kids.

When researching non-disparagement clauses, it might be worth understanding that this type of clause can also be common in business contracts as well as divorce and custody cases. You’ll therefore want to make sure that the information you’re accessing is related to family law rather than corporate contracts and legal issues.

What Does a Non-Disparagement Clause Look Like?

Not all non-disparagement clauses look the same, as they are written by attorneys to fulfill the needs of unique family circumstances. In their simplest form, these clauses need to clearly state the conduct that is prohibited by both parties.

A general non-disparagement clause might state something regarding both party's responsibility for fostering “a feeling of affection between the child and the other party” while also noting that “Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”

If you and your ex communicate with one another and your children using electronic communication, additional language might look like this to cover this type of communication: “This means, for example, and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child’s high regard for the other party.”

When one or both parents are getting remarried, this can cause further complexity when it comes to maintaining positive parent-child relationships. If one party has made it clear that they don’t care for their ex’s new spouse, additional language might be included in order to cover the disparagement of a third party.

Writing a non-disparagement clause really isn’t a task for a layman. It’s best to talk to your attorney before you include any language in your divorce decree. It must stand up to legal scrutiny and both you and your ex need to understand what it means. The clause needs to be, at once, sufficiently vague and sufficiently clear in a way that will almost always require the help of a lawyer.

What Is the Purpose of a Nondisparagement Clause?

The primary purpose of a nondisparagement clause is to protect the relationship of the child or children with both of their parents. Psychologists and courts alike have been increasingly learning about how damaging divorce can be on a child, particularly when they are involved in a nasty divorce or forced to serve as a go-between.

man with child in texas coparenting disparagement clause

A non-disparagement clause can help to protect your children and support their best interests after you and your spouse divorce.

A non-disparagement clause can be in everyone’s best interest. For the children, it can help make sure they grow up in a positive and nurturing environment even though their parents are no longer together. It can ensure that they don’t feel alienated from either parent and reduce the likelihood of negative psychological outcomes.

However, it can also be beneficial to the parents. It can help to protect the parent-child relationship for both individuals.

On top of that, studies have found that denigration commonly has a boomerang effect. This means that the kids end up distancing themselves from the parent that is speaking negatively about the other. If you feel tempted to bad-mouth your ex to your kids, this is something worth thinking seriously about.

How Can a Non-Disparagement Clause Help Your Custody Arrangement?

When one parent disparages another in front of their children, it can be a form of custodial interference. It can make it much more difficult to co-parent effectively because distrust and tension can grow between the parents.

coparents in texas with two children supportively raising kids

Having a non-disparagement clause can help you and your spouse maintain positive relationships and co-parent your children in a supportive way.

On top of that, it can negatively impact the children when one parent speaks negatively about the other. It can leave children feeling sad, guilty, or angry when they are spending time with a parent that has been disparaged.

Having this type of clause in your custody order can help ensure that your children have a positive experience with both of their parents.

The last thing you want is for your kids to feel like they have to take sides in your divorce. When you include a non-disparagement clause in your arrangement, it can help to protect your kids from parental alienation.

When Do You Need a Non-Disparagement Clause?

When both parents share visitation rights after a divorce, a non-disparagement clause could be helpful. If you are concerned that your spouse will speak negatively about you in front of your children when they’re spending time together, a non-disparagement clause can help outline an agreement between the two of you regarding disparaging the other when your children are present.

woman consoling son that is dealing with parents texas divorce

If you and your spouse are sharing visitation rights after a divorce, a non-disparagement clause can outline an agreement where neither party is negatively impacting the other's relationship with the kids.

Your custody rights, possession, and access to your children will impact whether a non-disparagement clause is necessary in your case. There are two different categories of child custody rights in Texas, which are:

  • Conservatorship
  • Possession and access

Under Texas law, the word conservatorship refers to the rights and duties a parent has to make decisions about important matters in their child’s life, such as healthcare, education, and religion.

Conservatorship can be further segmented into two categories:

  • Sole managing conservatorship: When only one parent is given the authority to make major choices regarding the child
  • Joint managing conservatorship: When both parents have the authority to make decisions jointly regarding the child

Each parent’s visitation rights fall under the category of possession and access. Texas parents can create their own custom schedule that fits their unique circumstances and needs, or they can choose between standard and extended standard possession and access schedules.

Regardless of what type of visitation and access schedule parents choose to create, the primary focus in these instances always has to be the best interest of the child. Texas courts will always look at the child’s best interest as the main consideration when issuing custody orders.

How Are Non-Disparagement Clauses Enforced?

It can be very difficult to enforce non-disparagement clauses in custody agreements when one parent breaches the clause. This is the case even when they are properly written and despite the fact that the agreement is legally binding.

One of the reasons for this is that the accusation of disparagement can be very difficult to prove. This type of situation frequently devolves into a back-and-forth “he-said-she-said,” where it is hard, if not impossible, to figure out who is in the right.

A judge isn’t likely to take away the visitation rights of a parent that doesn’t comply with the non-disparagement clause, even if you do end up taking the issue to court. Similarly, it is rare for them to impose any serious penalties for the breach. This is particularly true if you lack the necessary evidence to prove that they broke your contractual agreement.

If your child custody case is ongoing, though, and the evidence of disparagement is documented, the disparaging parent could receive less parenting time.

If you believe that your ex-spouse or co-parent has violated your non-disparagement clause, it’s a good idea to talk with an experienced lawyer to look at what your options are.

What to Do if Ex is Violating Non-Disparagement Divorce Clause in Texas

If you believe that your ex is violating the non-disparagement divorce clause, there are a number of steps you can take.

Gather Evidence

The first step is to gather testimonials and evidence. Proving that your ex has breached the contract you both signed can be difficult, and evidence will be crucial.

Some examples of evidence in this type of circumstance include:

  • Eyewitness accounts from other people that heard negative or disparaging comments
  • Voicemails or text messages sent from your ex to your children
  • Written statements from your child or children outlining what they heard
  • Disparaging social media posts about you that could be potentially seen by your children

It’s important that the evidence you collect goes beyond a one-off remark. When you only have one instance of disparagement, it’s all too possible that the comment was misunderstood, heard out of context, or said in jest.

Instead, you’ll need to establish that the violations constitute a pattern.

Texas courts will need to see that there is a clear history of your ex making negative or disparaging comments about you in front of your kids.

Compare the Evidence Against the Language of the Divorce Order

Now that you have collected evidence that could potentially violate the non-disparagement clause, it’s time to look at the specific language of the divorce order.

If your evidence doesn’t completely align with the verbiage used in the divorce or custody order, your ex could end up arguing that your evidence doesn’t match up with the agreement. If the evidence you collect doesn’t align with the language of the order, then it likely won’t be enough to enforce the clause.

Consult With a Family Law Attorney

It’s a good idea to work with a family law attorney if you believe that your evidence aligns with the language of the non-disparagement clause. It’s essential that you present the strongest possible argument to the court in order to reach a favorable outcome.

If your argument isn’t compelling, it can end up doing more harm than good. This is because it could potentially exacerbate any negative emotions between you and your ex, which can, in turn, have a negative impact on your kids.

The language of divorce and custody orders can be difficult to understand for the layperson, and an attorney can help you navigate the process and understand what your options realistically are.

An attorney can help you in the following ways:

  • Review the language and terms of the original non-disparagement clause
  • Look at the evidence you collected and assess its validity in terms of whether disparagement occurred
  • Examine whether the evidence you collected lines up with the language in the original clause
  • Help you enforce the non-disparagement clause and represent you in court

If you worry that your ex is going to purposefully bad-mouth you in front of your children, you also might be concerned that they will try and make the divorce process as difficult as possible. Make sure you check out these sneaky divorce tactics so you know what to keep an eye out for.

How Easy Is It to Enforce Nondisparagement Clauses?

It is, unfortunately, not very easy to enforce nondisparagement clauses. These types of situations can end up devolving into one person’s word against the other. On top of that, you might not be able to see a judge in order to deal with a breach of contract for weeks or even months after the alleged disparagement.

You will most likely want to work with a lawyer if you are getting divorced with children. They can help you draft a non-disparagement clause and also help you understand the enforcement options if the contract is breached. Typically, getting divorced without a lawyer in Texas is only a good idea if your case is agreed upon, your estate is very simple, and there aren’t children involved.

What Should I Do When My Child Bad-Mouths My Ex?

It isn’t uncommon for this type of clause to also include language about what the child says, too. A solo parent might be required to discourage their child from speaking negatively about the parent that isn’t around. As you might imagine, this can be a pretty difficult situation to deal with.

For example, the kid might just be speaking honestly about their observations and feelings about the parent they don’t see as often. You don’t necessarily want to push back on this type of activity which could rightfully be seen as the development of emotional intelligence. The last thing any parent wants to do is undermine their child’s confidence in their judgment.

Of course, you also wouldn’t want to violate the nondisparagement clause you agreed to.

If your child says something negative about the other parent, a good tactic can be to validate their feelings. You might say something along the lines of “that must have been very difficult for you.”

What do you do if your kid tells you that your ex said something negative about you?

A response that manages to not violate the clause while also acknowledging what your child is saying could look like “I imagine that was hard to listen to. I’m sorry you had to hear that.”

If your child seems to be getting into a pattern of speaking negatively about the other parent, you might find ways to help them process their emotions. Depending on their age, you might suggest that they draw a picture, write in a diary or journal, or get some exercise and fresh air.

The Negative Impact of Disparaging Your Co-Parent

There’s no question that co-parenting with an ex can be extremely difficult. Rather than being able to end your relationship and move on with your life, you have to continue dealing with your co-parent for years. While many people might assume this relationship ends when the youngest child turns 18, the reality is that there will be weddings, graduations, births of grandchildren, and more family events that will put the two of you in contact for the foreseeable future.

It’s common for parenting plans to prohibit parents from badmouthing each other to their children or in front of their children. This isn’t just a matter of ego on the part of the parents involved. This type of clause intends to protect the children.

Whether co-parents live together or apart, the conflict between them is strongly linked to psychological problems in children. These mental issues don’t always just fade away after the child grows up– they can continue lingering into adulthood.

If you make negative comments about your ex to (or around) your kids, it can backfire on you. This isn’t just true when it comes to your custody case, but also in regard to your relationship with your kid.

One particular study from Northwestern University found that young adults and their siblings feel less close to their parents than is normal when they are exposed to one parent denigrating the other. The study found these young adults had increased feelings of isolation from both parents and trusted both parents less.

The results from this study also found that when a father speaks negatively of a mother in front of children, the results are a more positive relationship with the mother but a more negative relationship with the father. Interestingly, when a mother denigrates a father to her children, the study found that the mother-child relationship is more negative but the father-child relationship remains the same.

One of the most important points made in this study was this: when one parent is denigrating the other, both parents are usually guilty of negatively speaking about their co-parent in this manner. This ultimately harms the relationship between both parents and the child.

The overwhelming effect of denigrating an ex in front of the kids is that the children feel more distant from the parent that is making negative comments.

How Does Divorce Impact Children?

When you decide to get divorced, you are making a difficult decision about what is best for you and your family. Even if splitting up is the right thing to do, divorce can be hard on kids. Every child is different, but some negative outcomes from divorce include:

  • Social withdrawal
  • Anger
  • Academic difficulties
  • Separation anxiety
  • A change in eating and sleeping patterns
  • Regression among younger children
  • Depression
  • Risky behaviors
  • Relationship issues later in life
  • Picking sides between parents

While divorce isn’t an easy topic to discuss, being transparent with your children in an age-appropriate way can help your children cope with the changes that are occurring. One of the best things you can do to help reduce the occurrence of the issues listed above is to eliminate conflict between you and your ex and maintain a positive co-parenting relationship. This is because parents that fight in front of their children can create the last outcome listed above, where children feel like they have to take sides and choose loyalty to one parent over the other.

To help your kids cope, you’ll also want to encourage your children to talk to you about how they’re feeling. Creating a safe place for them to share their thoughts and feelings can help the whole family heal and grow from the change caused by divorce.

If you are working on building an agreement between you and your ex regarding how you will raise your kids post-divorce, you might find the co-parenting guide published by the Office of the Attorney General of Texas a useful document to consult.

The actual process of divorce can be hard on children, where there is a period of limbo in between when the process is initiated and when you settle into post-divorce life as a family. Keeping the legal aspects of divorce as brief as possible can help everyone heal in the ways they need to and move forward with life. If you’re getting divorced in Texas, this article takes an in-depth look at how long divorce takes in the Lone Star State.

Getting a Divorce in Texas With Children

Getting divorced is never easy, but it is particularly difficult and complicated when there are children involved. Texas courts approach issues that involve your children with a primary focus on the best interest of the kids. That being said, proving that your ex violated the non-disparagement clause can be very hard to do, and even if the courts do agree that their remarks constitute a breach of contract, your ex might just get a stern talking to from the judge.

Talking to an experienced family law attorney can help you understand whether it is worth taking your ex to court over a violation of a non-disparagement divorce clause. They will explain the different options you have and what the potential outcomes are if you chose to pursue any of them.

If you’re looking for more information about getting divorced in Texas, be sure to check out TexasDivorceLaws.org.

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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