Defamation and Divorce

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Though it involves disturbing personal details and opposing versions of what unfolded within a marriage—from physical violence and emotional abuse, to drugs, alcohol, and possible mental illness—the public cannot seem to look away from the ongoing defamation case between actor Johnny Depp and his ex-wife, actress Amber Heard, who divorced in 2017.

The trial, which began last month, has become a kind of media (and social media) circus, with its own hashtags and memes, themed merchandise on sites like Etsy, and “team” tip jars in coffee shops measuring support for each party. The way it’s playing out in the proverbial court of public opinion, it could start to seem like a sordid game of he said, she said. But there are very serious issues at stake on both sides.

Depp is suing Heard for $50 million over a 2018 Op-Ed penned for The Washington Post, headlined, “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”  In the piece, Heard, without explicitly naming Depp, wrote that she had been a victim of sexual harrassment and assault as a young person, and then became “a public figure representing domestic abuse” after her troubled marriage. She directly aligned herself with the #MeToo movement and described personal and professional blowback from speaking out about her experiences.

Depp’s defamation suit contends that Heard’s abuse allegations are false and that her article has been “catastrophic” for his career, damaging his reputation and costing him tens of millions of dollars in lost work.

As of this writing, Depp’s team has rested their case, and testimony on Heard’s side is just beginning. A fairly standard motion by Heard’s attorneys to dismiss the case was rejected by Judge Penny Azcarate. (Separately, Heard is countersuing for $100 million because Depp’s team has called her accusations a “hoax.”)

So, what is this all about? What is defamation?

At its most basic, defamation—also called defamation of character—is the act of making a false statement that harms another person’s reputation. There are two types of defamation, slander (spoken) and libel (written).

It’s no secret that, given the pain and intensity of ending a marriage, divorcing or divorced couples sometimes say terrible, hurtful things about each other. But few statements meet the legal definition of defamation. In fact, given the inevitably heated, even hostile, nature of the divorce process, and the likelihood that the parties view things very differently, statements made during divorce proceedings typically fall under privilege, a protection by which the law grants immunity to spouses for what they say within divorce or custody proceedings. Honesty, transparency, and thoroughness are crucial, so both parties need to feel free to testify without threat of repercussions. It’s also important to remember that during a divorce trial, both parties are testifying under oath—there are criminal consequences for perjury.

So when does a statement cross the line? Can you sue your ex for defamation?

California law sets 5 criteria:

  1. The statement must be false. The truth, even if it is harmful, is not defamation.
  2. The false statement must be presented as fact, not as opinion—misleading intentionally, recklessly, or negligently.
  3. It must be published, meaning, heard or read by a third-party audience. This could be through email or social media, a magazine or news article, or simply said out loud at a gathering, etc.
  4. It must have hurt the reputation of the person it was about—though somewhat subjective, this means the statement brought hatred, shame, contempt, ridicule, avoidance, shunning, etc.
  5. The statement must have brought harm to the victim—such as a lost job or opportunity.

While statements made as part of your trial will not count as defamation, if your ex said or wrote something outside of court on their own time (such as on social media, by spreading rumors orally, or deliberately giving false information to your employer, etc.) and it meets these criteria, you may have a valid defamation case. The burden of proof is on the accuser, and it is significant. Although it can be very painful to endure a former partner’s vindictive trash talk, you’ll want to carefully weigh the cost/benefit of a defamation lawsuit—consider, especially, the potential  impact on the children and your ability to continue co-parenting—and decide whether it’s worth pursuing. Defamation cases have a one-year statute of limitations.

Three types of damages may be awarded: economic (compensation for quantifiable loss of work, wages, opportunity), non-economic (for emotional/psychological distress, social harm, etc.) or punitive (awarded specifically to punish malicious behavior).

If you’re going through a divorce and your former spouse has made public statements that are negatively impacting your life, the experienced family law attorneys at SFLG can evaluate your case and help you decide the best course of action.

By Debra Schoenberg


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