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Defamation and Divorce: Can You Sue Your Spouse?

Divorce is often one of the most painful times in a person’s life.  No one gets married planning on divorcing later.  When couples divorce, sometimes things are said in anger.  Sometimes those things are communicated privately, and other times, they are said publicly, to a friend or confidant, or in legal papers.  Many times, people ask their divorce lawyer if they can sue their soon to be ex spouse for defamation.

Defining Defamation

There are two types of defamation: slander and libel.  Slander is an oral statement involving the spoken word.  Libel, on the other hand, is written communication, such as signs, pictures, or words posted on social media, for example.

For something to be considered defamatory under the law, it is not enough that another person made unflattering statements, said something that hurts the other person’s feelings, is embarrassing, or just plain annoying.  Instead, defamatory statements must involve several elements, including:

  • Someone makes a statement to a third person
  • The statement is not true
  • The person is legally “at fault” in stating the alleged defamatory statement and
  • The person being spoken of suffered harm as a result of the wrongful statement.

Caselaw in Maryland defines a defamatory statement as “one ‘which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.’” Offen v. Brenner, 935 A.2d 719 (2007), quoting Smith v. Danielczyk, 115, 928 A.2d 795, 805 (2007).

Some statements are considered per se defamatory.  These include statements that falsely charge someone with a crime, and statements of immorality or unchastity.  Other statements are per quod defamatory. These require a greater level of proof regarding damages.  Damages can include compensatory damages, punitive damages, and other damages as awarded by the court.

Truth provides a defense to defamation claims.

Evaluating Whether or Not to Sue for Defamation

When deciding whether or not to pursue a defamation case, it is a good idea to start by assessing the case objectively, rather than from an emotional perspective.  Some questions to explore include:

  • Is the statement true? If the statement is true, such as a true disclosure of infidelity, this is not a basis for a defamation claim.
  • Did someone other than you hear or see the statement? If your soon to be ex says hurtful, even untrue things directly to you and no one else, this does not meet the elements of a defamation claim.  On the other hand, a post on social media, a statement to a friend, or an email to a colleague is indeed a statement to a third party.
  • Is the statement an opinion or fact? Sometimes this one can be hard to analyze.  If your soon to be ex tells a mutual friend that you are a terrible cook, or not interesting, or not particularly good in bed, this may hurt a great deal.  It may feel like someone is telling lies about you that are factually incorrect.  However, these examples are the sort that frequently lead to divorce clients asking their lawyers, “Can I sue for defamation?”  However, whether someone can cook well, is interesting, or is “good” (whatever that means) in bed is a matter of opinion, and therefore probably not actionable.

Limitations on Defamation in Divorce Cases

The law protects some statements from a defamation action.  For example, statements made in court filings are typically classified as privileged.  This means they cannot be the basis for a defamation lawsuit.  Communications with attorneys, while they are in fact “third parties,” are also typically not a basis for a defamation suit.  Additionally, statements to other third parties, such as parenting and child custody evaluators, social workers, the police, and other professionals who may be involved as part of the divorce proceedings are typically protected.

Challenges in Defamation Cases

Defamation cases can be hard to prove, however that is not always the case.  None the less, in bringing a defamation suit, one ensures extending litigation probably beyond the time needed to resolve the divorce.  It may even make settlement less likely, as the other party will be less inclined to engage in negotiations with an eye towards moving on.  A defamation lawsuit not only takes time, it requires commitment from the parties to take time off work to attend court hearings and depositions.

Moving On

It can be very difficult, when one is in the middle of a divorce, to objectively view the situation.  However, in most cases, dwelling on negative things said or written by an ex or soon to be ex does not further a person’s situation.  Instead, it often results in one getting stuck in a rut, fixated on the negative statements, rather than focusing on their life going forward.

Considering Divorce?

If you are considering a divorce or separation, contact the office of Fait & DiLima.  Fait & DiLima offers full service representation in family law cases in the Rockville and Frederick area.  Our team includes lawyers, paralegals, and case managers. This allows the firm to meet each client’s needs at every step of the proceedings.  Call today at (301) 888-6384.

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