Mud-Slinging E-Mails to Your Ex and Unclean Hands at Trial

Written by: Tracy Augustin

What Are Unclean Hands? 

The doctrine of “unclean hands” was one of my favorites going through law school. Why, you wonder?

Well, mainly because it was so easy to understand and remember. I mean the name practically speaks for itself. When someone has “unclean hands,” it means someone did a “dirty” deed.

Typically, in civil cases, the doctrine of unclean hands is a defense to a complaint, which means that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. If a defendant can show the plaintiff had “unclean hands,” the plaintiff’s complaint will be dismissed or the plaintiff will be denied judgment.

Makes sense, right?

E-Mails to Your Ex and Unclean Hands at Trial

Well, you might be asking yourself how this doctrine relates to your family law case. The truth is, it comes up more often than you might think, and I constantly have to remind my clients of this legal principle throughout the course of litigation.

One prime example of this issue has to do with the frequency that e-mails and text messages are used as evidence in family law trials. In some cases, these communications truly are helpful. In many, they could end up hurting more than helping. Here’s why:

If you have been saving all of the communications you’ve had between you and your ex over the past two years, chances are your ex has been saving them for the past four years. And, if there was ever a moment when you might have written something inappropriate to them, there’s a chance that it will come up during litigation and be used against…YOU! That said, if you cherry pick certain communications to disclose to the other side to show their unreasonableness or disrespectfulness to you, there is a high likelihood that at one point or another there has been an equally inappropriate communication that came from you, and the other side will pick that communication to share with the court.

Sadly, this is quite common in family law cases. And…judges are really wising up to it. In my opinion, they recognize that if one party is pointing fingers at the other for these types of inappropriate communications, the reality is, in most cases, both parties have unclean hands in this regard.

How Judges Are Handling Mud-Slinging E-Mails to Your Ex

That said, recent orders I’ve seen where this has been an issue have involved sending BOTH parents to a High Conflict Resolution class through the Courts or other co-parenting courses, awarding attorney’s fees to one party, and/or including such specific language in orders such as, “the communications between the parties shall be respectful in their tone and shall not use any profanities or expletives.” And, here was my favorite part of the most recent orders a judge issued: “The parties also shall not use any substitutes for profanities, such as random keystrokes, and shall not use any changes in font or emphasis to show anger or dissatisfaction.” In other words, changing a text message from “U R an ass” to “U R an a$$” really doesn’t alter the meaning behind it after all, does it?

The bottom line is if the mud starts slinging, both of you may come out of it with more than just dirty hands.

in most cases, both of you will end up with mud on your face

And, let’s not forget the great advice given to us by Queen many years ago: “Mud on your face…you big disgrace!”

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