Talking About Your Ex-Spouse on Social Media Understanding the Shak vs. Shak Decision Regarding Non-Disparagement Clauses

Talking About Your Ex-Spouse on Social Media: Understanding the Shak vs. Shak Decision Regarding Non-Disparagement Clauses

Social media platforms offer unprecedented views into other people’s lives. We can share everything from pictures of what we had for lunch to our child’s latest soccer success to our favorite motivational messages. But there are times when it’s not a good idea to communicate through social media. Consider people who are divorced or planning to divorce. Social media can provide them with a multitude of ways to talk badly about a co-parent or former spouse. At times, court orders and divorce agreements have included non-disparagement language that prohibits this kind of language. A court case in Massachusetts may have altered how we deal with parents who write negative information about each other online.

Shak vs. Shak

Ronnie and Masha Shak had only been married about fifteen months when Masha filed for divorce. The child they had together was only a year old at the time. A judge issued a temporary order giving sole custody of the child to Masha. Shortly after that, Masha filed a motion asking for additional temporary orders. Among other things, she asked the judge to “prohibit the father from posting disparaging remarks about her and the ongoing litigation on social media.”

The judge did order both parties to refrain from disparaging each other, especially in the presence of their child. The order also stated that neither of them could post anything regarding the divorce on social media.

Ronnie allegedly made additional negative social media posts. Masha filed a complaint for civil contempt against Ronnie for violating the judge’s temporary order. However, another judge decided that Ronnie was not in contempt because the prior order was unlawful prior restraint of speech.

The case moved through Massachusetts courts, eventually reaching the Massachusetts Supreme Court.

The Court’s Decision

After considering the evidence, law, and case law, the Massachusetts Supreme Court (the “Court”) made its decision. The Court vacated the lower court’s orders on future disparagement. Among other things, the Court stated:

“We recognize that the motion judge put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself. However, because there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.”

One reason the Court made this decision is because the child in question was a toddler and unable to understand what his parents had posted on social media. The Court felt the non-disparagement language was not needed and was, in fact, unconstitutional since the child was not directly harmed.

Also, the Court specifically noted that its order does not affect voluntary non-disparagement agreements.

Non-Disparagement, Social Media, and Your Divorce

Court order or not, it’s still a bad idea to say nasty things about your child’s other parent. Your spouse may not get a judge to order you to stop. However, you may be sued for defamation or have other legal action taken against you. But that’s not the worst part.

When you post something nasty (even if you think it is true) on social media, ask yourself if it’s in your child’s best interests. It’s probably not.

Your social media posts could be seen by family and friends or even go viral. The judge who makes decisions about your divorce will always consider your child’s best interests, even when you do not.

Is There a Place in Your Divorce for Non-Disparagement Action?

When your spouse or co-parent uses disparaging language about you online, contact an attorney immediately. Such actions could show a disregard for a court order and for protecting your child’s best interests.

Please call us at 415-293-8314 to discuss your case. The attorneys at the Law Offices of Judy L. Burger assist clients with divorce matters. We maintain offices in San Francisco, San Diego, Beverly Hills, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities.