Is it Possible to Prevent Defamation in Divorce Cases?
The title of this article says it all…is it possible to prevent disparaging comments and written statements (Facebook, Instagram, etc.) from being made about the other Party during a divorce? When this question is raised in my practice, I tell Clients to recall a sensationalized divorce of a billionaire couple (the billionaire being Sir Paul McCartney). That divorce was a media feeding frenzy and both parties engaged in world-wide disparagement of each other. So, if a billionaire—with teams of attorneys– cannot control the disparagement and bad press from a divorce, how can anyone else hope to escape the carnage?
This is a serious matter for many people going through a divorce. An angry ex wants to rally friends and strangers to their side because it feels good to throw barbs and get others to sympathize with the struggle they have endured. Rumors and blatant lies are generated. Reputations get destroyed. Employers are clandestinely contacted with salacious and/or damaging and/or untrue allegations about their worker. Military careers are put on hold until an investigation is completed—and then the military member has to somehow pick up the pieces and go on with a potential or actual mark in their file. Some employers get tired of the drama entering the workplace and the employee is disciplined or let go.
Why can’t a Court issue orders barring each side from disparaging the other? It does—sort of… This sentence, from 14-10-107, C.R.S. is attached to all petitions for divorce (check the last page—you’ll see it):
Both parties are enjoined from molesting or disturbing the peace of the other party or the minor child(ren).
However, enforcing this pretty broad rule, is a lot slipperier than making the rule or placing it at the end of the petition. If there are no children of the marriage, the Court will rarely intervene when parties disparage each other. The Court does not view conduct during a divorce in the same way as it views criminal conduct or someone’s interactions with a stranger. The Court views the situation of disparagement as unfortunate and often ridiculous or disgusting; but, unless Children are harmed, the Court usually finds an angry person generally has a constitutionally protected right to be mean and angry and to disparage their soon-to-be-ex-spouse. When there are no minor children of the marriage, the Parties are legally allowed to battle each other with a war of words—with few exceptions. Whether the Parties should engage in such pathetic behavior—and suffer the psychological and financial harm from engaging in such behavior– is another issue, entirely.
What about the Child?
What if there are children who will be harmed by the mean and angry statements? The simple answer to this often-queried issue is—if there are children, the Parties will be ordered to not disparage each other in the presence of the Children. However, an angry, revenge seeking Parent rarely follows this Order. Also, if a Parent is disparaging the other in the presence of the Children or within earshot, they probably mean to do it and will continue doing it. Wait a minute! If the Court just issued an order to NOT do this, why can the other Parent get away with it?! Simply stated, it is hard to prove harm to an adult through what someone said and hard to prove that the statement harmed the Children. The evidence must be overwhelming and convincing—not just the typical nastiness of what Judges see every day in the domestic relations Courts.
The Court knows that when a divorcing couple has minor Children still at home, the disparaging Parent recognizes they are harming the Children, but can’t or won’t stop the behavior. The disparaging Parent is the person with whom the Children were made; and, no one—not even the Court–will be able to truly change that person’s behavior. Certainly, if there are enough well documented incidents and clear harm to the Children is proven to have been caused by the disparaging, the Court may issue an Order that effects the custody of the Children; but, it is difficult to prove disparagement with enough impact that the Court is compelled to make such rulings. This is true even though we all innately “know” Children are harmed by a parent’s bad behavior and mean-spirited statements about someone the Child loves. Remember, there is and has been conflict for quite some time in any household going through a divorce. Anyone experiencing a divorce has already learned how to hurt and be hurt by their spouse, what to say, how to “imply” hurtful things about the other person and how to manipulate the Children so that the disparaging Parent believes they are “winning”. The tragedy is, though, that the fallout from disparaging the other Parent, cannot be controlled, cannot be reversed and usually harms the Children.