Defamation and Divorce

Divorce is often filled with recriminations, blame, and mudslinging. It’s not unusual for a divorcing couple to say derogatory things about each other. This type of conflict is common, but sometimes it rises to the point where legal proceedings are necessary to manage it.

Johnny Depp and Amber Heard’s Divorce

Movie star Johnny Depp and actress Amber Heard married in 2015, but 15 months later, Heard filed for divorce in Los Angeles. When she appeared in court with a bruised face, she stated that Depp had attacked her and harassed her. The court issued a temporary restraining order. Soon after, the couple issued a joint statement that they had resolved all of their issues and stated: "Our relationship was intensely passionate and at times volatile, but always bound by love. Neither party has made false accusations for financial gain. There was never any intent of physical or emotional harm." Heard received $7 million in the settlement.

Depp and Heard Clash Post-Divorce

In December of 2018, Heard wrote an op-ed for the Washington Post and referred to herself as “a public figure representing domestic abuse" and talked about how she had witnessed how institutions protect men who are who are accused of abuse. Heard did not mention Depp or refer to their marriage or relationship in the piece.

Depp sued Heard for $50 million, claiming defamation. His suit alleged that merely by writing the op-ed and making those written statements that Heard had defamed him and damaged his reputation. Heard countersued him for $100 million. The case is going to trial in Virginia (where the Washington Post is located) and is expected to feature celebrity witnesses, including Elon Musk, Paul Bettany, and James Franco.

What is Defamation?

Defamation is a false statement that harms another person’s reputation or causes financial damage due to loss of business or opportunities.

The statement must be:

  • Written,
  • Spoken,
  • Uttered, or
  • Gestured.

The statement must be published or made to a third party, so that someone other than the two people involved learn about it. For most people, the case must be proven with a preponderance of the evidence, meaning it is more likely than not that the alleged defamation occurred.

However, there is a different standard that applies to celebrities and people in the public eye. In that situation, the plaintiff must show that the defendant made the statement with actual malice, which is with knowledge of the falsity or reckless disregard for the truth. This is a higher standard and is more difficult to prove because it requires determining the defendant’s state of mind and intent. Because Depp and Heard are public figures, the actual malice standard will apply to their case.

Can Anyone Sue Their Spouse for Defamation?

Defamation is a civil action that is available to anyone, and it can be invoked based on the actions your spouse takes in and around a divorce case. The key is proving the elements of the crime and meeting the standard of proof, which must include actual harm if you are a well-known person.

Defending Against Defamation

Truth is an absolute defense to a defamation claim. If your spouse tells a reporter you are criminal, and you have been convicted of tax fraud, that statement is technically true and is a defense to the defamation case. A statement that is made while testifying in a court case cannot be used as the basis for a defamation case. Witnesses receive an absolute privilege against defamation because it is important for people to speak freely and openly when in court.

Statements that are made as opinions and not presented as facts also do not rise to the level of defamation. If your spouse states that you are a child abuser on social media, that could be defamation. However, if they state that, in their opinion, you are a child abuser, that is not defamation.

Damages for Defamation

If a court does determine that a statement is defamation, it must calculate the amount of financial harm suffered by the plaintiff to set the damages that are due. This is determined by examining:

  • Loss of income
  • Loss of income potential
  • Loss of future business
  • Expenses related to the statement

The court can also consider emotional harm, distress, and loss of enjoyment of life.

Preventing Defamation

The simple fact of a defamation suit can negatively affect your brand. A defamatory statement made by your spouse is damaging on its own, but a public lawsuit over the statement makes headlines and reveals many details about your private life if the case goes to trial. While you are absolutely entitled to recompense for the damage to your brand, business, and income, it is best to pre-empt defamatory statements from the beginning if possible.

If you believe that your spouse may make defamatory statements about you as your divorce progresses, your attorney can request a court order as part of your divorce case ordering your spouse to refrain from disparaging you or making defamatory remarks about you. The court can also order that neither party may speak to the press about the divorce proceedings, which can also prevent defamatory statements. These types of orders can adjust the tone of the proceedings, highlight privacy, and prevent statements that can cause harm.

If you are involved in a contentious divorce, it is best to talk with your attorney before making any remarks about your spouse or the case and refrain from making any negative comments about them.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

To connect with Dror: 212.682.6222 | [hidden email] | Online

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