Divorce can get ugly. When divorce does get ugly, the parties can say cruel and hateful things about each other to their friends and family. Is saying, writing or text awful things just par for the course in an Illinois divorce or can you sue for defamation in an Illinois divorce?
What Is Defamation In Illinois?
“The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander.“ Black’s Law Dictionary (10th ed. 2014)
While it may be interesting to discuss the distinction between libel (written words) and slander (spoken words), “all distinctions between libel and slander have been abolished in Illinois.” Mitchell v. Peoria Journal-Star, Inc., 221 NE 2d 516 – Ill: Appellate Court, 3rd Dist. 1966
Illinois law is a combination of both the Illinois statute and case law that supplements and modifies the Illinois statutes.
The Illinois defamation statute was written in 1874. That’s almost 140 years ago. Back then defamation led to dueling…which led to death. So, the statute is written pretty strongly.
“That if any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.” 740 ILCS 145/1
Divorce, fornication and adultery all go hand in hand so any discussion sex is likely slanderous.
“It shall be deemed slander, and shall be actionable, to charge any person with swearing falsely, or with having sworn falsely, or for using uttering or publishing words of, to or concerning any person, which, in their common acceptation, amount to such charge, whether the words be spoken in conversation of, and concerning a judicial proceeding or not.” 740 ILCS 145/2
“In actions for slander or libel, an unproved allegation of the truth of the matter charged shall not be deemed proof of malice, unless the jury, on the whole case, find that such defense was made with malicious intent. And it shall be competent for the defendant to establish the truth of the matter charged by a preponderance of testimony.” 740 ILCS 145/2
This is all really, really broad. If, in Illinois, defamation is any discussion of sex, false allegation, or unproven allegation with malicious intent…then there is a lot of defaming happening in Illinois.
Of course, it’s not that simple. Illinois case law has modified defamation over the years.
Today, defamation in Illinois is divided into “defamation per se” and “defamation per quod.”
Defamation Per Se In Illinois
“Only certain limited categories of defamatory statements are deemed actionable per se. If a defamatory statement is actionable per se, the plaintiff need not plead or prove actual damage to her reputation to recover….Under our common law, four categories of statements are considered actionable per se and give rise to a cause of action for defamation without a showing of special damages. They are: (1) words that impute the commission of a criminal offense; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment, or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.” Bryson v. News America Publications, Inc., 672 NE 2d 1207 – Ill: Supreme Court 1996
There are only 4 instances where you can pursue defamation per se which is essentially “He or she said it…and that’s bad enough.”
Allegations of crime, venereal disease, professional integrity and incompetency rarely come up between divorcing couples so defamation per se is unlikely in an Illinois divorce.
Defamation Per Quod In Illinois
“[A] per quod claim is appropriate where the defamatory character of the statement is not apparent on its face, and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning. To pursue a per quod action in such circumstances, a plaintiff must plead and prove extrinsic facts to explain the defamatory meaning of the statement.” Bryson v. News America Publications, Inc., 672 NE 2d 1207 – Ill: Supreme Court 1996
“[D]efamation per quod requires that the plaintiff plead and prove special damages, i.e., actual damages of a pecuniary nature.” Imperial Apparel v. Cosmo’s Designer Direct, 882 NE 2d 1011 – Ill: Supreme Court 2008
So, if not defamation per se, the allegedly defamed must prove explicitly how the statement was defamatory and how it cost them money?
It’s hard to imagine how a spouse could do this to their spouse without also hurting their own financial well-being. While you are married, all income and assets are deemed marital. So, anything said that negatively impacts those assets would be in contradiction to the defamatory spouse’s interests.
Yet, people do crazy things during a divorce so a defamatory statement may be seen as a dissipation of the marital assets should it occur. A finding of dissipation of assets would thus obviate the need for a defamation action.
What Defamation is NOT in Illinois
No matter how awful the thing is that someone says, it is not defamation if it’s true.
“One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true” Wynne v. Loyola Univ. of Chicago, 741 NE 2d 669 – Ill: Appellate Court, 1st Dist., 4th Div. 2000
The statement doesn’t even need to be perfectly true, it just needs to be more true than not in context and as a whole.
“When the defense is truth, only substantial truth need be shown.” Farnsworth v. Tribune Company, 253 NE 2d 408 – Ill: Supreme Court 1969
What About Free Speech and Defamation?
You are allowed to say what you want in America. But, if your speech is hurting someone and it’s false…you’re committing defamation.
For speech to be protected by the first amendment of the United States Constitution, it must be pure opinion and not heard as stating facts.
A statement is constitutionally protected under the first amendment only if it cannot be “reasonably interpreted as stating actual facts.” Milkovich v. Lorain Journal Co., 497 US 1 – Supreme Court 1990
It’s a free country. Say what you want. Sue who you want.
If Defamation Does Not Work, Try The Tort Of False Light Invasion
“The tort of false light invasion of privacy protects a person’s interest in being let alone from false publicity. Three elements are required to satisfy such a cause of action: (1) the plaintiffs were placed in a false light before the public as a result of the defendants’ actions, (2) the false light in which the plaintiffs were placed would be highly offensive to a reasonable person, and (3) the defendants acted with actual malice, that is, with knowledge that the statements were false or with reckless disregard for whether the statements were true or false.” Benton v. Little League Baseball, Inc., 181 NE 3d 902 – Ill: Appellate Court, 1st Dist., 2nd Div. 2020
The elements of a false light invasion are a lot less onerous than defamation per se and therefore can be proven easier. Still, the statements must offensive to the average objective person.
“To state a claim for a false light invasion of privacy, the plaintiff must [prove]…that the false light would be highly offensive to the reasonable person” Schivarelli v. CBS, INC., 776 NE 2d 693 – Ill: Appellate Court, 1st Dist., 6th Div. 2002
False light invasion statements must be made to people the victim actually cares about. “To establish a false light invasion of privacy, a plaintiff must prove that he was injured when he was placed in a false light before the public. While the publicity element will ordinarily be shown by a general publication, this court has recognized that limited publication to recipients who are in a special relationship with the plaintiff satisfies the publicity element.” Duncan v. Peterson, 947 NE 2d 305 – Ill: Appellate Court, 2nd Dist. 2010(citations omitted)
Much like defamation per quod, special damages must be pled to explain how the victim was, in fact, hurt by the false light invasion.
“If a false light invasion of privacy claim is based on statements that are not defamatory per se, a plaintiff must allege with particularity that he suffered special damages. In other words, special damages must be pled in cases where the claim for false light invasion of privacy is based on language where the defamatory meaning can be established only by reference to extrinsic facts.” Benton v. Little League Baseball, Inc., 181 NE 3d 902 – Ill: Appellate Court, 1st Dist., 2nd Div. 2020
Can You Sue Your Spouse In Illinois For Defamation?
Spouses can sue each other in Illinois for defamation. Even though (as I stated above) it makes little sense to sue a spouse for defamation.
“A husband or wife may sue the other for a tort committed during the marriage.” 750 ILCS 65/1
You can sue your ex-spouse for defamation in a court separate from your divorce or separation action.
If there are children, your Allocation of Parenting Time and Parental Responsibilities will probably say something about neither party making disparaging statements (but only in front of the children). This can be brought up in your divorce or parentage case.
How Can You Defame Your Spouse In Illinois Without Getting Into Trouble?
In a divorce, sometimes you have something that you want to get off your chest. It’s not enough to tell a therapist or your mother. You may feel that you have to say it, officially, to the whole world.
Well, Illinois law allows you to say any damned thing in court filing or a court proceeding without fear of a defamation action.
“The[re is a] defense of absolute privilege in a defamation action involving statements made by an attorney” Atkinson v. Affronti, 369 Ill. App. 3d 828, 832 (Ill. App. Ct. 2006)
“Illinois clearly favors recognition of an absolute privilege for statements made in a judicial proceeding.. pleadings in a judicial proceeding are absolutely privileged and cannot ordinarily form the basis of a defamation action.” Defend v. Lascelles, 500 NE 2d 712 – Ill: Appellate Court, 4th Dist. 1986
Keep in mind that all pleadings are matters for the public record and one day even the Cook County Circuit Clerk will finally make pleadings accessible on the internet.
“[E]very pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other document… The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact…If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.”(emphasis mine) Ill. Sup. Ct. R. 137
If the thing you alleged was not substantially true a sanction usually amounts to paying your spouse’s attorney’s fees and having the judge doubt your credibility for the rest of your divorce case. In conclusion, it’s not worth telling lies about anyone, ever.
In the end, as long as the defamatory statement is not in a pleading, some lawyers (not me) can and will say anything and never get in trouble for those mean, cruel and often false statements.
“The privilege [against defamation for statements by a lawyer] extends to out-of-court communications between opposing counsel, to out-of-court communications between attorney and client related to pending litigation, to out-of-court communications between attorneys representing different parties suing the same entities, to statements made during quasi-judicial proceedings, to communications necessarily preliminary to a quasi-judicial proceeding, and to out-of-court communications between an attorney and opposing parties in demand letters prior to litigation.” Atkinson v. Affronti, 369 Ill. App. 3d 828, 832 (Ill. App. Ct. 2006)