Divorce May Breed Defamation, But Is It Worth Trying to Sue Over It?

Board Certified Family Law Specialist Matt Arnold answers the question: “Can any attorney help me with my family law needs in North Carolina?”


The process of divorce is inarguably one of the most stress-inducing times of a person’s life. Hurt feelings, finger-pointing and angry words are almost inevitable in any case that seeks to legally end a relationship.

Three Gorillas Charlotte Divorce LawyerSometimes, things escalate. At least one partner will make allegations against the other—to friends, to family, to coworkers, to the Court.  A failed marriage notwithstanding, each party usually has a great deal worth preserving in their own lives moving forward—a career, a certain place in the community, reputation—that has taken years to build.

Besides the risk it poses to your professional and community reputation, hearing a soon-to-be-former spouse spew untruthful allegations about you to friends, family and members of the court can cause even the most level-headed of individuals to see red. Family law clients frequently wonder whether anything can be done about the spouse making these damning allegations, and whether or not it is worth the trouble.

The unfortunate reality is that it can be difficult to succeed on a defamation claim in a divorce case in North Carolina, however.


What is a defamation claim?

First, it is necessary to understand the basic elements of a defamation claim in North Carolina. Defamation consists of a false, intentional communication to a third party; spoken defamation is referred to as “slander,” while written defamatory assertions are “libel.” Unless the statement qualifies as defamation per se (discussed below) the statement must also cause the defamed person a monetary loss—in other words, you must be able to specifically link the defamation to a loss of employment, business opportunity, or other pecuniary gain. Without this element, mere humiliation, loss of reputation, public contempt or emotional distress will not suffice for a defamation claim.

That is, unless the defamation qualifies as defamation per se. Some statements are so injurious on their face that the law presumes they are defamatory without requiring the plaintiff to prove monetary injury. Defamatory per se statements include assertions that the person has committed a serious crime; has an infectious disease; and allegations that are injurious to the person in their profession or trade.


The difficulty of defamation claims in divorce cases

There are two primary reasons why it can be difficult to succeed on a defamation claim arising out of a divorce. The first is a practical concern: it is a divorce.  Judges, potential juries of your peers—most are all too aware of the vitriol that can fly in a divorce involving two otherwise reasonable individuals. It may not be fair, but the mere fact that it stems from a divorce case can cause the Court to balance the public’s First Amendment right to freedom of speech over your right to safeguard your reputation.

The second issue with defamation claims arising in divorce cases is a legal concern. The so-called litigation privilege protects defamatory statements that are made “in the course of” judicial proceedings, even if they are made with malice. The North Carolina courts are rather broad in their interpretation of what qualifies as “in the course of” judicial proceedings. If the party who made the defamatory communication can claim that it related to the pending divorce, this can uproot a defamation claim.

None of this is to say that defamation claims stemming from a divorce proceeding cannot succeed—they can and sometimes do. However, it is important to consult with your attorney to determine your chances of success before attempting to add a related claim to the already arduous divorce process.

If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.


About the Author

ARNOLD & SMITH LAWMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.







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