Doylestown Divorce & Custody Cases – Can they get away with saying that? Isn’t that defamation?

Brian A. Coverdale, CDFA™
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High Net Worth and Complex Financial Divorce Analysis

Accusations Made During a Doylestown Divorce or Custody Proceeding

We often hear our clients reference language or statements their spouse or the other party has made during custody anddivorce proceedings in Doylestown, Newtown or other parts of Bucks County. When parties are having a divorce or custody dispute in Pennsylvania, they are sometimes on the receiving end of some very harsh accusations due to the highly emotional and combative nature these disputes. Can their spouse or the other party get away with saying that? Isn’t that defamation?

Unfortunately, the overwhelming majority of the time the answer is “yes, they can get away with that.” Criticisms, accusations, and negative comments often cause embarrassment and anger for those on the receiving end. The natural reaction is to try and strike back at the person making such accusations, and consequently, our clients ask about suing for defamation. While we understand our clients’ sentiments and want to help, the Constitution provides a wide berth of protection for all kinds of speech, including criticisms, accusations, and negative comments, and furthermore, the law provides some protection for defamatory statements made under certain conditions.

PA Defamation Claim – What You Need to Know

In order to have a successful defamation claim, there must be a defamatory statement made about the plaintiff, which is publicized with malice and which causes harm to the plaintiff. The statement of fact must be untrue. Statements of opinion and true statements will never give rise to a claim of defamation, and defamation is more than mere insulting language. The defamatory character of the statement must be so offensive that no one could confuse its meaning, and that the court would deem it intolerable in today’s society. The courts have ruled that today’s society tolerates a high level of defamatory language, and that the statements must present untrue facts so offensive as to harm the reputation of the plaintiff and lower his estimation in the community to the point a third person would tend not to associate or deal with the plaintiff. With regard to the publication element, same can be in the manner of libel (in writing) or slander (oral).

Under Pennsylvania law, communication may be protected by a conditional privilege, when the statement is made on a proper occasion, in a proper manner, for a legitimate reason of the speaker, and based on reasonable cause. Conditional privileges exist in situations where the Court recognizes a public interest that surpasses the plaintiff’s right for protection from defamation. Determining whether the conditional privilege applies can vary based upon the relationship of the parties, the context and forum of the communication, and the circumstances surrounding the communication. The conditional privilege does not apply when the person publicizing the statement acts with negligence.

There also exist absolute privileges for making defamatory statements. An absolute privilege exists for all judicial proceedings and pleadings. The rationale behind this absolute privilege is so that no plaintiff will be deterred from making a claim for fear of retaliation in the form a defamation claim being brought by the defendant. The court has decided that the public interest of free and open access to the courts surpasses the interest of vindicating defamation that occurs during a judicial proceeding.

A crucial element of a successful defamation claim is proof of actual damages to the plaintiff. Actual damages may be general or special; general damages are those such as impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Special damages are in the form of some economic or pecuniary loss, such as loss of business income or personal income. Without some actual damage to the plaintiff, the court cannot correct and remedy the harm caused by the statements, and thereby, no defamation claim exists.

Certain words constitute defamation per se, and in that case, there is no need to prove special damages. Where statements impute to the plaintiff a criminal offense, loathsome disease, business misconduct, or serious sexual misconduct, they meet the definition of defamation per se. The court views statements of this type to be damaging in and of themselves, and hence, no specific accounting of actual dollar damages is required in such situations.

What Can You Do About Accusations Made During a Doylestown Divorce or Custody Proceeding?

When our client’s spouse or other party makes accusations or combative statements during divorce proceedings or custody proceedings, our clients understandably get very upset. Unfortunately, if these accusations are made during a judicial proceeding or pleading they will fall into the absolute privilege referenced above. Even if the defamatory language is not made during a custody or divorce proceeding, the language will likely fall under the conditional privilege. The unfortunate norm of custody and divorce disputes in Bucks County and other parts of Pennsylvania is to be contentious and have accusations going back and forth between the parties. The Courts often hear the worst of the language and have developed a high tolerance regarding this type of language due to the highly volatile and emotional nature of the disputes and the high volume of cases they hear. Unless the language is extremely offensive, so much so that it is obnoxious and abnormal even for a divorce or custody dispute, the language will likely not rise to the high level that the Court deems actionable for defamation.

All that said, while it is important that clients understand the limitations of bringing a defamation action, they should not be afraid to seek assistance when someone is defaming his or her good character. Defamation remains an actionable claim, because the courts recognize that while people enjoy freedom of speech, they cannot make intolerable statements that cause harm to other persons. When an actionable claim exists, our firm is prepared to fight to recover damages for any harm to reputation and right a wrong that is created when people make malicious statements about others.