Separation agreements that include confidentiality clauses and gag orders that prevent speaking out against harassment, child abuse, and child neglect should not be enforceable by family law courts.
Abusers will often push their victims into gag orders as a condition of a settlement agreement, or in the case of a divorce, a separation or divorce agreement. If a single parent raising two children on a low income is offered hundreds of thousands of dollars, they will often sign the agreement – even if it means giving up their right to speak out at a future date against their abuser.
The courts should not enforce these gag orders when abuse is present. The same principle of an “illegal contract” should apply, and the confidentiality clause in the agreement should become void.
Divorce is Stressful: Gagging Abuse Allegations Makes it Worse
Going through a divorce is often cited as one of the most stressful life events that someone will ever experience.
According to the noted Holmes and Rahe Stress Scale (aka the Social Readjustment Rating Scale), which measures the impact of major life events, divorce is second only to the death of a spouse – and closely followed by marital separation in the third position.
“The Top 5 Most Stressful Life Events and How to Handle Them” (University Hospitals Connor Integrative Health Network) actually lists “going through a divorce” in the top spot:
- Getting divorced
- When someone you love dies
- Moving to a new home
- Major health issues
- Losing your job
When a client has been dealing with a separation or divorce for years, litigation or stress fatigue often comes into play. Your client might want a divorce settlement of $500,000 when they first start divorce litigation, but three years later, they are willing to accept $100,000 – which might only cover their legal fees.
All the Justice You Can Afford?
Major power imbalances in a married couple frequently show up during separation. For example, one of the parties makes a lot of money, has access to credit, and manages the bank account, and the other party doesn’t have access to much in the way of funds and might have been raising the kids instead of earning income.
This means that the high-income person can afford a top divorce lawyer to prepare a contract, whereas the other party uses a law student via a legal aid clinic to review it. Or, even worse, the low-income person reviews the divorce agreement themselves.
I once saw a divorce lawyer steal $200,000 from one of the immigrant employees at his family law firm because of a power imbalance. Seeing that galvanized me to start ClearwayLaw.com: a website that lets the public leave ratings for every lawyer in Canada. My goal was to separate the good lawyers from the bad – and to prevent terrible/unethical lawyers from practicing law.
In the end, the lawyer was disbarred twice, and it had nothing to do with me. Turns out the lawyer had stolen millions from his clients.
It took eight years for the lawyer to be disbarred, and almost six years of litigation for the victim to get a judgment. Unbelievable.
Gag Orders are Common in High Net Worth Divorce Cases
Gag orders are common during divorces – especially with high-net-worth individuals. Mel Gibson had his ex-wife Oksana Grigorieva sign one, likely to stop her from talking about things in the media that would harm Gibson’s reputation and career.
Ghislaine Maxwell and Jeffrey Epstein also had their victims sign gag orders, likely as a condition to receive multi-million dollar settlements. The agreements allowed Maxwell and Epstein to abuse their victims over a significant amount of time, as victims were afraid to come forward for fear of legal action.
The courts and judges should always be thinking about how to even out the power imbalance that exists in many divorces and disputes, especially high-net-worth cases.
And separation agreements should never protect anyone against speaking out about harassment and abuse.
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