Breach of Non-Disparagement Clause


Are you dealing with a disparagement lawsuit in Arizona or looking to learn more about what a non-disparagement clause means in separation agreements?

A non-disparagement clause can be a useful tool for protecting reputations in both personal and business-related matters. But before you sign anything, a full understanding of the agreement is essential. We’ll go over a few situations that this type of agreement could be helpful for.

What does “Disparage” Mean? 

The dictionary defines disparagement as “something that derogates or casts in a bad light.” In legal terms, disparagement typically means making negative comments about a person or business. 

In lawsuits, such an agreement can help protect the defendant’s reputation once the case has been closed. A mutual non-disparagement clause can be helpful for couples who are separating. This type of contract is often useful for businesses that wish to protect their reputation, as well.

Non-Disparagement Agreements in Separation

Child custody and divorce are emotionally difficult and often become confrontational. A non-disparagement agreement can protect hurting parents from engaging in propaganda against each other. For this reason, these clauses are often standard in child custody agreements.

The clause will often state that neither parent should speak negatively to the kids about the other parent. It may also include rules about other relatives honoring this agreement. When two parents are separating, their main concern is often doing what’s best for their children. This mutual interest is a good place to start in creating a non-disparagement clause related to your separation.

Benefits of Non-Disparagement in Child Custody Matters

Many parents find it tempting to bad mouth the other parent as an attempt to get their child to agree with them. But even if what you’re saying about your ex is true, putting this on your child can be damaging. They may internalize what you’re saying and interpret it as them doing something wrong. They may also feel like they’re forced to choose between their parents, which is an impossible choice to make. 

By allowing your ex (who may be very bitter) to say whatever they want about you to their child, you might risk your child developing a damaged perception of you. As mentioned, divorce and child custody arrangements are already stressful. Taking the simple steps to create a non-disparagement clause can protect your child’s well-being and prevent these complications.

What Should You Include in the Clause?

Non-disparagement agreements can vary widely and work specifically for the needs of the family creating them. They must clearly state what conduct is forbidden for each party. In your clause, you might state that neither party should do anything that could damage the child’s perception of the other party.

Depending on your situation, you might find it necessary to include specific details about the mode of communication you use. For example, the agreement might state that neither party should speak negatively about the other over the phone or text message. 

Another example circumstance you might want to cover in the clause is either you or your ex seeing new partners. If either of you is seeing someone and concerned about the other parent bad-mouthing the new partner, a non-disparagement agreement could forbid this behavior.

Consider the “What-Ifs”

Before you decide on how you’ll word your decree, talk to an attorney and ask for their approval or input. It must be understood by you, your ex-partner, and a hypothetical Arizona judge. Make the clause vague enough to satisfy judicial scrutiny and specific enough to know what you and your ex must refrain from doing.

Non-Disparagement Agreements in Business

You may find a non-disparagement clause in several business circumstances while working in Arizona. From a contract to start a job with someone, to a litigation settlement, these clauses commonly appear in employment contracts and severance agreements. 

While these contracts are legally valid, employers may not forbid you from reporting your concerns to a government agency. If a business is asking you to sign a clause that doesn’t mention this exception, you should request that they add it.

Should You Use Such an Agreement for Your Business?

Many businesses include non-disparagement clauses in their contracts to protect their reputation. Negative publicity can drive away potential customers and such an agreement can prevent this. In the age of transparency, due to social media, negative comments can do more damage than ever before on public forums.

Making these agreements before any proceedings take place is helpful for keeping each party from ruining the other’s name in case a public trial occurs. Once a non-disparagement agreement is in effect, both parties cannot:

  • Say anything negative about each other in public.
  • Post negative comments or reviews about each other online.
  • Create negative publicity or perform public actions to harm the other’s reputation.

Should You Sign a Business-Related Non-Disparagement Clause?

Whether or not you should sign a non-disparagement clause while working with a business depends on whether you’re okay with not always speaking freely about your work. If you sign a non-disparagement agreement, you can’t talk about how hard your boss is to work with or that you think the company’s latest marketing tactic isn’t going to work. 

Even venting to your friends about work can count as a breach of a non-disparagement clause. You might think that this sounds like it limits your free speech, however, this right doesn’t necessarily apply to a business contract. In signing such a clause, you’re technically waiving that right.

Violating a Non-Disparagement Clause

If you violate a non-disparagement agreement, you could end up with a lawsuit on your hands, including monetary damages. In some cases, you may even end up owing the suing party’s attorney fees. Before you sign a contract that includes a non-disparagement agreement, make sure you consult a legal professional. 

While some clauses will only prevent false statements, others will be stricter. A lawyer can explain these terms to you, so you know exactly what you’re signing before you agree.

Call our Employment Law team at (480) 464-1111 to discuss your case today.

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