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When does defamation figure into divorce?

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In this era of social media - where it's easy to not only say something in the heat of the moment, but to post it to the Internet for all to read - it's worthwhile to review what defamation is and if it might apply to your divorce case. 

Texas uses "defamation of character" as a catch-all phrase to include libel (in writing) or slander (in speaking) to make someone look bad - specifically, to damage a person's reputation or to show that a person has a bad character.

To prove it in Texas, the plaintiff must show that the defendant made a false statement to a third party (either in writing or speaking) about the plaintiff, and there must be a "required degree of fault." But there are two different standards for defamation that depend on whether or not you're a public figure.

If you're a public figure bringing up a defamation case - and there are a few different degrees of this, which can include being a public official or just famous - you have to prove that the defendant acted with "actual malice." As police officers and many government employees can fall within this definition, this means you don't have to be famous to be public.

If you're a private figure, on the other hand, you just have to show "negligence," meaning that the person you're accusing of defaming you didn't take what the law terms as "reasonable care" to check whether the defamatory statement was false or not.

A defendant may have several defenses available. If the statement is indeed true, regardless of how embarrassing or hurtful, that can absolve the defendant from the charges. If the statement is couched as opinion, rather than fact, that can also be a workable defense.

Of course, if you're in a divorce, no matter how hurt or angry you are, taking to social media or other online platforms is ill-advised. It can add an extra element of tension to negotiations that are already by their nature tense. If what's posted rises to the level of defamation, that could result in a tort being added to the divorce lawsuit, which could result in damages in excess of the marital estate division. When in doubt about whether to post something that might be perceived as defamatory, don't do it!

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