During a divorce one or both spouses may feel compelled to establish within their community of family and friends the “why,” i.e., each spouse’s explanation as to why the marriage broke down. This is particularly relevant in American culture which, regrettably, can be quick to judge when word gets out that a couple is going through a divorce.
How spouses go about explaining the “why” can take various forms. Some spouses have heart-to-heart, private conversations with their treating mental health professionals. Others, much to the chagrin of their divorce lawyers, may go nuclear and find comfort in a very public social media rant.
The question becomes whether or not spouses are faced with any limitations on speech when they choose—if they do—to discuss their divorce and/or the information they learn during their divorce with third parties.
That brings us to Justice Jeffrey S. Sunshine’s recent decision in T.I. v. R.I., 2025 NY Slip Op 50115(U) (Sup. Ct., Kings Cty. 2025). At the outset, I note that a large portion of the T.I. decision relates to the plaintiff-wife’s motion to disqualify the defendant-husband’s counsel from representing the husband because his counsel was subsequently retained by the husband’s brother in a malicious prosecution action against the wife.
This article is limited to the portion of the T.I. decision regarding the wife’s request that the court direct the husband to “refrain from disclosing details” of the litigation “to third parties.”
The parties in T.I. were married in 2014 and have one unemancipated child. Their first divorce action was commenced in 2015, an “extremely contentious litigation” which “continued until late-2018 when the court issued an extensive written decision resolving all custody and financial issues between the parties.” After the trial decision was rendered, the parties reconciled and discontinued the action.
Then, the wife commenced a second divorce action in 2023. The wife filed a motion seeking, inter alia, the issuance of a protective order under CPLR §3101(a) directing her husband to refrain from disclosing details of the litigation to third parties and sharing court documents and discovery with third parties (other than retained counsel and experts).
To appreciate the emotional and legal temperature in this case, it is worth explaining the background to some degree. The wife claimed that for nearly 10 years of her marriage, the husband subjected her to “multiple forms of abuse and harassment,” and that the husband’s brother “encouraged the abuse and holds general misogynistic views and personal hostility towards her.”
The wife also claimed that the brother’s participation in the alleged abuse involved “the brother berating and harassing the mother, spreading rumors about her in the community, and verbally attacking and threatening her in public.”
The wife further asserted that her husband and his brother “conspired to ensure any injuries she sustained from the abuse were not reported to law enforcement by local watch organizations where the mother sought help.”
Additionally, the wife claimed that the husband’s brother “utilized the court system to engage in groundless litigation with her over the past four years,” which included (1) filing false reports against her with the Administration for Children’s Services (“ACS”) “for physically abusing her son on multiple occasions…which were held to be baseless”; and (2) the wife being arrested after her husband’s brother re-opened a police report he had filed on behalf of two of his children wherein he accused the wife of physically attacking them—allegedly “in retaliation for an ACS case and criminal charges” brought against the husband.
In 2021, the wife was awarded a two-year Order of Protection against the husband’s brother. This family offense matter was ultimately settled between the wife and the husband’s brother. In 2024, the husband’s brother sued the wife and her attorneys in a tort action for malicious prosecution and negligent supervision.
In denying the wife’s motion for a protective order, the decision in T.I. explains that there is “no prohibition in the Domestic Relations Law (“DRL”) nor the CPLR [New York Civil Practice Law and Rules] barring matrimonial litigants from disclosing or disseminating their own documents or their spouse’s documents in a matrimonial action” (emphasis added). If your jaw hasn’t dropped yet, the decision also notes that while Section 235(1) of the DRL “prohibits a court employee from disseminating papers filed in a matrimonial action it does not place any prohibition on litigants.”
The wife’s motion—seeking a prior restraint on her husband’s speech—presented a “conflict with his right to freedom of expression.” To warrant such a restriction on speech, the moving party must “demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
The court held that it “cannot prohibit” the husband “from disseminating his own or his spouse’s documents and discovery with third parties that would be considered a component of a public trial (i.e., analogous to sitting in the back of the court room)” (emphasis added).
The wife raised “general allegations that the defendant-husband could disseminate her personal information to third parties because of the tenor of this contentious litigation.” As stated by the Court:
If a divorce being ‘contentious’ were sufficient basis to impose a total ‘gag order’ on parties in divorce actions many if not most contested divorce actions would result in ‘gag orders’.
The message appears to be as follows: allegations by one spouse to a divorce action that the other spouse “could” disseminate personal information about the complainant spouse are insufficient to impose the extreme remedy of a gag order. The question becomes: what would suffice to demonstrate a “clear and present danger of a serious substantive evil”?
A client’s request to disseminate information or documents about his/her spouse (beyond the usual suspects of experts, accountants, or other similarly situated divorce professionals) should be evaluated on a case-by-case basis with particular focus on why the request is being made in the first place, the potential fallout from dissemination (including how dissemination may impact children of divorce), etc.
To summarize, while the First Amendment grants extraordinary rights vis-à-vis public speech, I would not interpret the T.I. decision as a carte blanche invitation for spouses in litigated divorce matters to run amok in public or otherwise gossip under the guise that information or documents shared with third parties “would be considered a component of a public trial.” Rather, as our law professors told us, it depends.
"Badmouthing Spouses: Balancing Free Speech with Common Sense," by Alan R. Feigenbaum, was published in the New York Law Journal on March 27, 2025.
Reprinted with permission from the March 27, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.