Family law proceedings are challenging for all parties involved. Often times statements and allegations are made, either in court or in a party’s pleadings, which are hurtful and untrue. I have had a number of clients ask me whether they can sue the person making these comments (usually their spouse) for defamation. Unfortunately, the answer is almost always ‘no’.
People involved in legal proceedings have what is called ‘absolute privilege’. Absolute privilege is a complete defense to an action for defamation as long as the defamatory statements were made in what is called the ‘ordinary course of the case’. If the defamatory statements were made after the case has concluded or are in no way connected to the legal proceeding, they may not be protected by ‘absolute privilege.’
Absolute immunity is necessary for the search for the truth. If people are going to appear and testify openly and freely in court, they need to know that they can do and say without fear of being sued for defamation.
Thus, a party is usually protected no matter how malicious, insulting or defamatory his or her words or actions have been.