Defamation During a Divorce

shutterstock_167515295It is often said that the Criminal Division of the Court deals with “bad” people at their best behavior, while the Family Division deals with “good” people at their worst behavior.  Divorce litigation is undoubtedly stressful, and emotions often lead to the exchange of insults, demeaning comments, and disparaging remarks between the parties.  Access to social media makes it even easier to spread harmful statements about the other party in a matter of minutes.  These statements can be extremely embarrassing, and even detrimental to a party’s reputation in the community. 

As tensions rise during the litigation, it is not uncommon for the person on the receiving end of the disparaging statement to threaten to file a defamation lawsuit against the other party.  Defamation consists of two types of false statements: slander (false statements made orally) and libel (false statements made in writing).  To prove a defamation claim in Pennsylvania, the burden is on the Plaintiff (the party about whom the statement was made) to show:

            (1)  The defamatory character of the communication.

            (2)  Its publication by the defendant.

            (3)  Its application to the plaintiff.

            (4)  The understanding by the recipient of its defamatory meaning.

            (5)  The understanding by the recipient of it as intended to be applied to the plaintiff.

            (6)  Special harm resulting to the plaintiff from its publication.

            (7)  Abuse of a conditionally privileged occasion.

The numerous elements required under Pennsylvania law to establish a defamation claim is the first indication that these claims rarely come to fruition during a divorce.  Contrary to popular belief, it is not as simple as presenting the alleged defamatory statement to the Court and then proving that the statement was indeed false. 

Establishing the harm resulting to the victim of the statement is a particularly challenging element to prove.  The petitioner must convince the Court that the statement “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” Birl v. Philadelphia Elec. Co., 167 A.2d 472, 475 (Pa. 1960).  It is not sufficient if the victim of the statement feels “embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Tucker v. Phila. Daily News, 577 Pa. 598, 614 (2004).  Harm can be particularly difficult to show in a divorce litigation, where it is often the case that both parties are guilty of making derogatory statements about the other.

Even if a party successfully establishes a defamation claim, the person who made the statement then has the opportunity to present a defense to the claim.  Defamation defenses include proving that the statement was actually true, or that the statement was merely an opinion protected under by the doctrine of free speech.  While it is the Court that makes the preliminary determination as to whether or not a statement is capable of being defamatory, the claims and defenses are ultimately presented to a jury during a formal trial to determine whether or not the statement was in fact defamatory.The cost and fees associated with a jury trial can quickly exceed the costs and fees of the divorce litigation. 

While defamation claims may be threatened in the heat of the moment, formally filing a defamation claim is a serious decision that should be discussed thoroughly with the attorney handling your divorce.  Although the likelihood that a party will actually proceed with a defamation claim during a divorce is slim, this does not give a party the freedom to make disparaging remarks about the other party.  The misbehavior of the parties during the litigation often becomes another issue argued to the Court, particularly in custody disputes.  Divorce litigation is stressful enough. The dissemination of disparaging remarks will only complicate and prolong the matter, regardless of whether a civil lawsuit ever develops.

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Posted in Divorce
5 comments on “Defamation During a Divorce
  1. Larry Driver says:

    Defamation happens once somebody makes a false, unprivileged statement concerning somebody to a 3rd party, that attacks the person’s skilled character or standing, claims that associate degree single person is loose, claims the person encompasses a sexually transmitted malady, or that the person has committed against the law of ethical transgression. expressed in a different way, to represent defamation the statement should incorrectly accuse the litigator of immoral, criminal or unethical conduct.

  2. Timothy Hogg says:

    I was wondering: if the comments or statements of defamation were targeted toward the children from the marriage, can the other party get relief? My specific problem is that my ex has told our children half truths which has strained the relationship between us. It has essentially eliminated a relationship between my daughter and me. My son gets it but he desperately doesnt want to be in the middle.

    I have texts from my daughter and my wife that correlate and show that my wife shared negative information that was either untrue or partially true, hiding the redeeming part of the story. My ex’s intent is clearly to negatively impact the relationship.

    Another issue is my kids’ age. My son is recently 19 and my daughter is recently 18. My daughter spent some time in therapy and the therapy was partially intended to help bring her and me together. That never happened so I am thinking the therapist is a wealth of information.

    How do I proceed? Should I proceed? Where do I start?

  3. harry ellis says:

    Valuable discussion . I Appreciate the facts ! Does anyone know where my assistant could get ahold of a template TX Petition for Divorce No Children copy to fill out ?

  4. Marie says:

    I’m unsure if you’re aware, but throughout your article you have pasted “air Jordan 11 retro” and “shop Jordan cheap”… you were more than likely searching this while writing the article and pasted them at random points. You may wish to review and edit your document.

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About Family Law Focus
The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Jennifer A. Brandt, of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases throughout her career. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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