Can You Sue Your Ex for Defamation in Divorce?

Suing for Defamation During Divorce

Divorce tends to bring spouses to their breaking points, causing them to say nasty things to one another. But when things are taken too far, both spouses can suffer. If one spouse says something that harms the other spouse’s reputation, known as “defamation,” the effect could be devastating. For instance, the spouse could lose their job, the ability to obtain a future job, housing, financial aid, professional licenses and certifications, and more. Other impacts of defamation in divorce include:

  • Ridicule
  • Hate
  • Belittling
  • Humiliation
  • Shame
  • Lowered self-esteem
  • Mental health problems
  • Physical health issues
  • Broken relationships

What Is Defamation?

Defamation is a false statement of fact that harms a person’s reputation and/or results in other damages that they could sue for. As such, it is not surprising that divorce can set the foundation for a defamation lawsuit due to the high tensions and animosity between spouses. It’s important to know that defamation can be written or spoken, otherwise called libel and slander, respectively.

In other words, libel is written defamation and slander is spoken. For example, libel can occur through pictures, signs, articles, and social media posts, while slander only involves oral statements. Don’t be fooled into thinking that saying or writing something hurtful about a spouse is enough to get sued for defamation. It takes more than that.

How Do You Prove Defamation in a Divorce?

After talking to an attorney and determining that a defamation lawsuit is necessary, you will need to establish the following four elements to prove your claim:

  • A false statement was presented to be a fact
  • The statement was spoken, written, pictured, or gestured (in some cases)
  • The statement was published or communicated to a third person, meaning someone saw or heard the false statement
  • The defendant demonstrated fault amounting to at least negligence
  • The plaintiff suffered damages or some harm caused to them

Defamation suits between non-public figures require the lowest standard of proof, or the “preponderance of evidence standard.” Preponderance of evidence requires the plaintiff to prove that there is more than a 50% chance that the defamation claim is true, or it is more likely than not to be defamatory, in order to get awarded damages.

However, public figures have a different standard of proof in a defamation claim. People like celebrities, politicians, and other public figures must prove that the defendant defamed them with actual malice, as you can see in the case ruling described below.

In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964), The Supreme Court established that a public figure plaintiff must show that the defamatory statement was made with actual malice, which means the defamation was committed “with knowledge that it was false or with reckless disregard of whether it was false or not.” The plaintiff must prove actual malice by clear and convincing evidence, or specifically, “the convincing clarity which the constitutional standard demands."

Privileges & Defenses to Defamation

Certain privileges and defenses apply in defamation claims. If used successfully, the following elements can get a claim dismissed altogether:

  • Truth: A defamation claim can get dismissed if the alleged “defamatory” statements are true.
  • Absolute privilege: Witnesses get absolute privilege when making statements during judicial proceedings.
  • Qualified privilege: This allows someone to make a statement that is typically considered defamatory in instances like legislative proceedings. But under certain circumstances, however, the statement would not be considered defamatory unless it is made with actual malice. As such, a person who maliciously defames another does not get qualified privilege.

Examples of Defamation in Divorce

What does defamation in a divorce look like? As long as the false statements are presented as facts, not opinions, and damaged the plaintiff as a result, a spouse may have grounds to sue for defamation. See some examples below:

  • Your spouse falsely accuses you of child abuse on social media
  • You attempt to prevent your spouse from getting promoted by telling their boss that they cheat on their taxes and commit other fraudulent acts
  • Your spouse lies in their Facebook post, saying your infidelity caused the divorce
  • In your blog, you falsely claim that your spouse committed domestic violence

Possible Damages in Defamation Claims

While damages can be challenging to prove in defamation suits because defamatory statements are subjective, a successful suit may result in economic or non-economic damages awarded to the plaintiff.

Economic damages are the actual losses incurred from a defamatory statement, such as lost income, loss of future earning capacity, expenses resulting from the defamatory statement, and loss of future business opportunities. On the other hand, non-economic damages are non-monetary losses such as pain and suffering, emotional distress, loss of consortium, and loss of enjoyment of life.

If you believe you were defamed by your spouse during your divorce or are facing defamation accusations in your proceeding, our Westchester County divorce attorneys may be able to help. If you successfully prove defamation in your lawsuit, you may achieve favorable outcomes in your divorce under limited circumstances. Allow us to determine your legal options and help resolve your issues by contacting us online or at (845) 605-4330!

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