For every amicable divorce (which is an oxymoron in a high-conflict divorce), there are countless acrimonious ones. When “I Do” turns to “F You ,” long time pent up emotions can get triggered and released, nerves can get rattled, and your kids can get caught in the crossfire. As a divorce lawyer, I’m often asked about the legal options and practical solutions available to clients when their exes are attacking and impugning their character whether it’s online, through the grapevine, or via their children. Here’s my tried and true advice to resolve a bad situation without making things more toxic (if that's possible).
#1. Don’t React. Breathe.
“Fight or Flight” is a natural instinct in all animals, including human beings. It happens when we’re suddenly confronted with a potentially dangerous situation. The deer in the woods will hear a hunter’s steps and make a split-second decision to run or ram the hunter head-on. As a parent, when you hear words such as “Mom's boyfriend is young enough to have a play date with you” it is likely that your heart may begin to palpitate, your muscles might tense up, your breath might shorten, and your blood pressure might spike. Instead of allowing your ex to get the best of you by sending you to the ER, the best thing you can do is breathe deep (yoga breathing is effective), count to 10, and then make an appropriate and even response. Breathing deep can calm your nerves, rush oxygen to the brain, and take you out of the “fight or flight” (reptilian) part of your brain, back to where you can make rational decisions.
#2. Listen.
Listen carefully to what is being said and by whom. instead of attacking the messenger, consider the source of the information, i.e., your ex and the motives for making those comments. You don’t need to respond to the messenger whether it is your teenage child, a caring relative or friend, or an inquisitive (aka nosy) neighbor. If you’re reading an e-mail or seeing a post on social media – absorb the message, but take your finger off the “reply” button.
#3. Evaluate.
Once you’ve heard the message, determine whether you, your family, or anyone else is in danger. “Dad says he's going to kill you” can pose an immediate threat, versus “Dad says that you spend more money than the Kardashians!," which does not. Although both comments can be upsetting, by remaining calm, you can determine both whether the message is credible and whether there is sufficient cause to be more than just upset. You should also evaluate whether the person who delivered the message has his or her own agenda. Is this consistent with something your ex would say, or is the messenger trying to upset you? Obviously if you determine that the message is potentially life threatening, calmly gather as much information as possible and contact the authorities first and then your attorney.
#4. Be Proactive.
If you’ve already begun legal proceedings with a qualified attorney, you should have a court order in place not to disparage each other. This order should specify consequences that, if your ex violates the order, will cause your ex to think before maligning you again. If you are not proactive in your divorce -- especially in seeking orders regarding the kids -- you will always be on the defensive. In most states, the court will take into consideration in awarding custody which parent is more likely to facilitate a relationship with the other parent.
#5. Reassure the Messenger.
The best thing you can do is to (calmly) thank the messenger for their information and say that you’ll handle it from there. By not reacting and giving them ammunition, there is nothing the messenger can report back to your ex. Your ex is likely hoping for a reaction. Don’t take the bait. By potentially escalating the situation with a response, especially a snarky one, you’re only making things worse.
#6. Correct.
If the messenger has relayed incorrect information, you are entitled to correct it, without accusing the ex of disparaging you. If a child discloses your ex said you “missed their big game because you didn’t care,” you can reply with the truth: “I care about you, and love to watch you play, but I couldn't be at your game because I had a work commitment that I could not change.” I always tell clients that most kids are smart and will eventually figure out on their own who is the toxic parent and who is not.
#7. Try to Resolve.
If both spouses can talk calmly and rationally on the phone, or through services such as Our Family Wizard, a quick and brief communication can often resolve the matter. Don’t begin the communication with an accusation that puts your ex on the defensive, “why did you tell our son that I spent all your money? ” Instead, make a statement of fact, “our child told me x.” If your ex apologizes and admits the truth, thank them for their honesty and apology. It might be a good time to gently remind them about the no disparagement agreement. However, if your ex denies saying it, assess whether you believe they are being truthful, whether your child may have not accurately heard what your ex said or whether they were not 100% accurate.
A reminder that you should be very careful when writing a text or e-mail. Tone can often be lost in your word choice, and you can come across as angrier and less rational than you intend. Also write all written communications knowing that a judge may one day be reading the communication and deciding which parent is the better parent and co-parent.
#8. Two Wrongs Don't Make a Right.
No matter how abusive your ex is, don't fight back in the same manner. "Mommy said that you are a loser who never supported the family" should not be countered with "Mommy's IQ is below 100, and the only thing she knows how to do is to shop." Be the better person and either don't respond, and change the subject or tell your child that it is not nice to say negative things about other family members. Remember, when a parent puts down the other parent to a child, they are in fact putting down the child as the child is made up of both parents.
#9. Don't Get, Mad Get Even.
Strategy, strategy, strategy. Remember that it is the turtle, not the hare, that wins the race.
#10. In Some Jurisdictions You Can File a Separate Civil Lawsuit, Such as Defamation, Assault and Battery, Harassment, etc.
Whether you can file a separate legal action depends on where you live. For example, in California you cannot file a separate lawsuit for defamation if the facts arise out of the same facts in the divorce action. However, if you believe that there has been domestic violence, i.e., abuse, you can file a request for a Domestic Violence Restraining Order. California courts have liberally found domestic violence when an ex has disseminated your e-mails to third parties or sent e-mails to third parties including family members describing your marital infidelities in exquisite detail. Generally to win a defamation claim, you must prove in court that a false statement was made and that it was injurious to your character or reputation. Damages could include the lowering of one’s social standing in the community, the reduced ability to find work, and a weakened relationship with the child. Awards could include a substantial financial settlement or judgment. Defamation cases are difficult to prove without solid evidence. Unless recorded, slander (a verbally spoken false statement) is often more difficult to prove than libel (a printed false statement). In the age of social media, inflammatory posts can easily be removed, so if your ex posts something defamatory, be sure to get a screenshot immediately and send it to your attorney. It is also possible (albeit difficult) to subpoena records from Facebook, Twitter, Instagram, etc.
By having a legal plan in place at the start of your divorce, you’ll be better equipped to deal with trash talk from an ex if and when it happens. Life is messy. Emotions are fragile. Should your ex go on the attack, your calm response and knowledge of your legal options can de-escalate the situation and hopefully bring your ex back down earth where you can rationally resolve your conflicts together.