I decided to write this guide because I am frequently asked, in the context of divorce proceedings, if it is possible to sue someone for defamation. I should note immediately that this is a general guide. The laws discussed below can, and often do, vary significantly from state to state. Before continuing, let's take a quick look at the defamation cause of action by itself.
Defamation - What is it?
Defamation is generally defined as any intentional false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. When the defamation is spoken, it is referred to as "slander." When written, it is called "libel."
Based on that definition alone, you may already be kicking yourself for not having sued many people in your life before now who have lied and, one way or the other, hurt you. In order to prevent an avalanche of litigation from defamation, the courts have for many years attempted to balance an individual's private right to protect his reputation against the public's right to freedom of speech.
Is Divorce a Defense to Defamation?
As a result of the courts' "balancing" mentioned above, to have a defamation case that you can actually take to court the following elements must be satisfied: 1) A defamatory statement -- someone must have said, or written, something that was defamatory; 2) A non-privileged communication to a third party -- the defamation must have been without privilege (the person didn't have a right or obligation to report it) and communicated to a third party; 3) The statement had to be false -- If the statement was hurtful (but true) you do not have a cause for defamation; 4) The statement must have referenced you -- "I heard around town that a certain orthodontist was having an affair" isn't sufficient; 5) Negligence -- the person making the defamatory statement must have, at a minimum, made the statement negligently; 6) Injury -- you must have actually been injured by the statement that was made. Divorce does not, therefore, by itself bar a claim for defamation. What's the issue then?
The Practical Issue - Perception (And Why the Divorce Does Matter)
So, your ex stated in the divorce proceedings that you had contracted an incurable STD (which was untrue). His / her statement gets out and slowly makes its way through the community and you lose business as a result. This seems to meet the six essential elements of defamation...so why can't you sue? There are two potential problems, one practical and one legal.
The practical issue is that you are going through a divorce. When people go through a divorce, emotions are in play and often statements are made in the heat of the moment that are regretted later. As a result, all the merits of your defamation claim are almost immediately watered-down in the eyes of the judge, potential jurors, etc. "Oh, it's a DIVORCE...." could very well be written on the tombstone of your case. As soon as that word is uttered, the practical effect is for the courts' "balancing" to weigh more on the side of the public's right to freedom of speech than your right to protect your reputation.
The Legal Issue - What is a Privilege?
A privilege is generally defined as a particular benefit, advantage, or immunity enjoyed by a person or class of people that is not shared with others. In other words, conduct that may be prohibited in the general population may be acceptable for a certain individual if he / she is privileged to do so. The privilege that is usually at the heart of the divorce and defamation question is the litigation privilege. The litigation privilege gives attorneys, parties, judges, and witnesses absolute (or in some jurisdictions a lesser form known as "qualified") immunity from defamation claims. The historical rationale for this privilege was simple --- if everyone could sue everyone else in a courtroom, the system would collapse. There is a variance across the states as to how far this privilege extends beyond the courtroom itself. However, it is generally accepted that statements made in the courtroom, or during the course of the proceedings themselves, are immune from a defamation claim.
Due to the numerous essential elements required for a defamation claim it is, on a good day, a difficult cause of action on which to succeed. When a divorce is also involved, the practical issue of perception coupled with the legal issue of privilege makes it even harder for a plaintiff to prevail. Before consulting an attorney, you may want to consider the following:
1) Was the defamation egregious and can the statement be shown conclusively (e.g., through a medical test) to be false?
2) Did the defamation occur a significant distance from the courtroom / judicial proceedings?
3) Have you really been harmed and can you (in some form or fashion) quantify that harm in dollar terms?
In conclusion, it is POSSIBLE to prevail on a defamation claim in the context of a divorce and, particularly if your answers to the three questions above are "yes", you should consider seeking the assistance of an attorney in evaluating the merit of your claim.