Supreme Court of Connecticut: Post-Judgment Divorce Action

In a post-judgment divorce action involving first amendment rights, the Supreme Court of Connecticut upheld a lower court’s ruling that the waiver of free speech rights by a party pursuant to a confidentiality agreement was made intelligently and voluntarily, and the party could be sanctioned by the court for breach of the agreement.

The Case

The plaintiff husband filed for dissolution of his marriage to defendant wife. They entered into a confidentiality agreement that restricted the dissemination of discovery material and disparaging or defamatory information to the public or press that related to the litigation, and these terms would survive marriage dissolution. Of primary concern was that such action could potentially be harmful to the husband and his business interests. The court approved the confidentiality agreement and made it a court order. Soon after, the marriage was dissolved and judgment incorporated into a separation agreement. This agreement stated that it superseded any and all previously-made agreements between the husband and wife, and as such were without effect.

Over a year passed when the husband found out the wife planned to appear on a nationally broadcast television program to discuss him, their marriage, and a pending custody matter. The husband immediately filed for a restraining order, and a trial court found in his favor. The court noted that the separation and confidentiality agreements did not cover the same areas of party rights and interests. It further noted that because the confidentiality agreement became a court order, the separation agreement could not nullify it.

The Appeal

The wife appealed this decision on multiple grounds, most notably her First Amendment claim. She argued that the confidentiality agreement constituted prior restraint in violation free speech rights, that waiver is not enforceable unless it is narrowly tailored to advance a compelling state interest, and even if it could be enforced, she did not validly waive her rights.

U.S. Supreme Court precedent has found that where private individuals voluntarily enter into an agreement that restricts their own speech, they also waive their First Amendment rights. There is no requirement that enforceability relies on the existence of a compelling state interest. The reasoning behind this is the very nature of contractual liability, which is consensual in nature: one party makes a promise, and the other party offers consideration in exchange for that promise. Therefore, the Supreme Court of Connecticut held in this case that because the husband and wife voluntarily defined the scope of disclosures that would trigger sanctions, the wife couldn’t complain when the court held her to her promise.

Effectiveness of the Waiver

For a waiver to be effective, it must be made intelligently and voluntarily. The party must be aware not just what the right or privilege encompasses, but also the relevant circumstances and the consequences of such a waiver. There is no requirement that the words “First Amendment” appear in an agreement if it would not materially add to the parties’ understanding of the right being waived. In determining whether a waiver was intelligent and voluntary, a court will consider whether the parties had relatively bargaining equality, negotiated the terms of the contract, were represented by counsel, and the extent to which each party benefited from the agreement.

Upon review of the case, the Supreme Court of Connecticut ruled that the trial court properly concluded that the wife intelligently and voluntarily waived her First Amendment rights. The wife had relative bargaining equality with the husband and negotiated the terms of the confidentiality agreement. She was represented by counsel, and because of her waiver, she significantly benefited. The Supreme Court affirmed the judgment of the lower court.

Whether advancing or defending a motion seeking to enforce the terms of a confidentiality or separation agreement pursuant to a divorce, a divorced individual is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or