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Defamation and Georgia Divorce

It is not uncommon for us as Georgia divorce attorneys to hear the question: “Can I sue my ex-spouse or soon to be ex-spouse for Defamation?” As Georgia divorce attorneys who primarily handle family law matters such as divorce, paternity, legitimation, child support modifications and alimony modifications, we do not handle defamation matters. Thus, we are unable to provide legal opinions concerning whether a defamation matter may be appropriate and sustainable. However, as it is not uncommon for a divorce action to leave one or both ex-spouses wondering: “Can I sue my ex-spouse for defamation?” below is a discussion on the interplay between divorce and defamation in Georgia.

What exactly is Defamation?

Defamation is generally defined as untrue statements made by one party concerning another, published either orally or in print, which cause harm to that other party’s public image. According to Georgia law, defamation in written or printed form is called libel and defamation that is spoken is called slander. See O.C.G.A. §§ 51-5-1 and 51-5-4. To be successful on a defamation claim, the person who initiates the action (the plaintiff) must prove the following basic elements:

  1. The alleged defamer made a false statement about the plaintiff;
  2. The alleged defamer communicated that statement to a third party in the absence of a special privilege to do so;
  3. The alleged defamer was negligent or malicious in making the false statement about the plaintiff; and
  4. The plaintiff was harmed by the alleged defamer’s conduct.

See Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

In a nutshell, defamation is either written or spoken statements made by one person about another person that are untrue. The untrue statements must be made to a third party and the statements must be false. If the statement is true, or if it is impossible to verify the truth or falsity of a statement, a claim for defamation will fail. Additionally, if the false statement was not published to a third party, a claim for defamation will fail.  For example:

Wife says to Husband one night as they are sitting alone at home, “You are a child molester.” Although this is a despicable statement to make to another person if it is not true, this statement does not qualify as defamation because it was not published. Wife spoke these words to Husband only. No third party heard this statement. Thus this statement is not defamatory. Additionally, if a police investigation and a court adjudication had proved that husband was indeed a child molester, the statement would also fail to qualify as defamation because the statement is not false.

Defamation in the context of divorce

Divorce matters can, at times, escalate into virtual scream matches between the parties, with each spouse throwing a barrage of allegations at the other. Generally, these statements are in the form of opinions, which are outside the realm of defamation. However, at times these accusations and statements rise to the level of defamation, which can be dangerous for both parties. Not only can defamatory statements have a negative impact on the party making them, because it opens them up to the possibility of facing legal action, but defamatory statements can also be very damaging to the victim of such statements. The whole point of allowing victims of defamatory statements to take legal action against the one who made the statement is because defamatory statements harm the public image of the victim. Using the facts of the above example, if Wife had openly accused Husband of being a child molester, Husband’s public image could be permanently marred, even after he has vindicated himself though a lawsuit. With this being said, there are two things every party to a divorce should keep in mind:

  • Tell the truth – Do not make a statement about your spouse or any other party involved with the divorce that you know are untrue.
  • Failing to check facts is dangerous – Do not make a potentially harmful statement about another party unless you know that statement is true and verifiable.

 

 

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