The process of divorce – which is essentially splitting one family unit into two distinct family units – is tough. Tensions run high. As a result, hurtful and hateful things can be said during a divorce. As divorce attorneys, we are frequently asked if the things said during a divorce can have legal consequences. In other words, can you sue for defamation for things said during a divorce? If you are considering suing for defamation, you may need the assistance of a civil litigator or personal injury lawyer who will work on contingency.

What is Defamation?

Before we can determine if you can sue for defamation, we have to understand what defamation is. California law defines defamation to mean intentionally false communications that harm another person. These communications can be verbal (slander) or written (libel).

How can you know if a communication is defamatory? Think about the statement and try to answer these questions:

1. Is the statement false?

A statement or communication can only be considered defamatory if it is false. A defamation lawsuit will not be successful if the statement is true.

2. Was the statement an opinion?

Defamation lawsuits must be based on statements that are truthful and based on facts. As much as you may want to, you can’t sue another person for stating their opinion.

3. Was the statement communicated to another person?

Defamation requires that a false statement is communicated to a third party. This simply means that someone else – other than you – has heard the defamatory comment. Defamatory language can be distributed (or “published”) verbally, in writing, or even on social media.

4. Did the statement injure your reputation?

Not all false statements about you will necessarily cause you harm. In order to be defamatory, a false statement must have “a natural tendency to injure” or causes special damage.

You may have a case for defamation if you have determined that a statement was:

  • False
  • Not an opinion
  • Communicated to another person, and
  • Harmful to your reputation.

Statements Shielded by Privilege

Individuals may be shielded from civil liability for defamatory statements if they are protected by privilege. When you are immersed in a family law battle – whether it’s a divorce, child custody battle, or request for alimony – you have certain protections for the things you say. When you are in court or speaking under oath you secure the protection of the litigation privilege. This privilege gives you immunity from defamation claims.

It is important to note that this privilege does not extend to your private conversations or communications outside of the scope of your legal proceeding. The statements you make on your own time can most certainly have civil consequences.

Who Has the Burden of Proof in Defamation Cases?

You claim that your spouse made a false and harmful statement about you to another person. Your spouse doesn’t deny making the statement but argues that it was truthful. When you decide to file a defamation lawsuit, who has the burden of proof? In most cases, the defendant (person being accused of making defamatory statements) has the burden of proving that the statement he or she made was true.

Get the Assistance of a Qualified Attorney

Are you currently involved in a Los Angeles family law matter? Do you believe that your spouse or another person has been intentionally spreading false and hurtful lies about you? You may be able to make a case for defamation. Contact Fernandez & Karney to learn about your rights.

Our Los Angeles family law attorneys have over 50 years of combined legal experience. We know that getting a divorce, fighting over the custody of your children, or negotiating support can be emotionally taxing. Sometimes harsh words can be exchanged. We can help you hold another person responsible for their hurtful actions. Call today to request a free consultation.