Defamation during Divorce

“What’s in a name? A rose by any other name would smell as sweet.” Juliet believed a name itself was of no consequence, but as you know, your reputation is invaluable. Let’s say you have given or taken a name as you entered the marriage, and now your spouse is trying to splatter your name during the divorce. Social media, cellphones, and an available audience make defamation easier than ever. You may wonder whether you can recover for your spouse’s harmful words.

What is defamation?

You must prove that your spouse communicated a false statement of fact to a third party, which caused material or reputational harm, and he or she acted either negligently, recklessly, or with actual malice when making the statement. Spoken defamation is known as slander. Written or printed defamation is known as libel. In South Carolina, defamation is not about hurt feelings, but is about how the victim’s reputation maybe affected in the community. Therefore, damages must be present.

Why is a defamation claim difficult during a divorce?

A defamation claim arising out of a divorce can be difficult to bring because of the nature of divorce. Most people, including a judge or jury, understand the distain and contempt a divorce action can create for parties who once may have acted as reasonable people. The right to freedom of speech granted in the First Amendment could weigh heavily over your attempt to safeguard your reputation. Many other defenses to defamation exist such as whether the statement is true, or whether the statement is privileged.

A “litigation privilege” is the most common privilege that could grant immunity from defamation. Under the litigation privilege, the statements could be privileged and prevent a legal claim if: the defamatory communication was made during the course of a judicial proceeding, and to anyone with a present or future interest in the matter or a logical relation to the proceeding.

Play it Safe

Playing it safe and holding your tongue is the easiest way to avoid a defamation dispute during divorce. Your spouse may not do the same. Consult with an attorney to analyze a potential defamation claim and how this could impact your pending divorce.