Can I sue for damages during or after a divorce?

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My divorce has taken several nasty turns and my spouse has been caught lying multiple times. She's done nearly everything in her power to keep our children away from me such has by having bogus protective orders filed against me which were later thrown out and always being late when dropping the kids off for my parenting time. Is there any possibility that I can sue her for emotional damages or perhaps defamation for making false statements about me during the hearings?

Attorney Answers

3
Jay Bodzin ·
Short answer: No. Longer answer: You certainly cannot sue for defamation for statements she makes in court pleadings or hearings. Such statements are specifically exempt from defamation claims. Disagreement over facts is the basis of a legal dispute; it is not itself actionable. As far as 'emotional distress' - these claims are much, much harder to successfully make than most people think. You have to demonstrate that the defendant (i.e., the person you want to sue) had exhibited "extreme and outrageous conduct," something that "shocks the conscience" of ordinary people. Mere acrimony in a divorce is nowhere near that level. Everyone hates their spouse in a divorce. Furthermore - and this is a problem in both types of claims - you would need to show the extent of your damages. In a claim for 'emotional distress,' you need to show that you have suffered serious psychological harm, as a result of the 'extreme and outrageous conduct' you allege. This generally involves getting a therapist to testify that you have serious mental problems that were caused by the conduct. And, of course, your defendant would have the right to have you evaluated by an independent expert, to try to show that you didn't have those problems, or that you did but they were caused by something else. They'd have access to all of your psychiatric records. Do you really want that? People have this idea that suing someone can be this cathartic emotional experience, that brings vindication for every (real or perceived) lie and insult. This idea is staggeringly wrong. Lawsuits are intensely stressful. They drag on the conflict for months longer than they'd otherwise last; and force you to relive the same issues constantly. Your opposing side would have every right, and means, to question your honesty, your memory, and your motives. If your spouse is filing meritless motions, the thing to do is to reply to them, to assemble your evidence, and to ask a court to rule. If you win, you can ask that she be ordered to pay your attorney fees that you incur. If she fails to comply with a parenting time order, you can file a motion to enforce that order, and potentially get makeup time. So you're not without remedies. But lay off the 'defamation' and 'emotional distress' claims. That goes nowhere.
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Joanne Reisman ·
There is actually a tort called abuse of process. You can read a general description of it here: http://en.wikipedia.org/wiki/Abuse_of_process Ti requires a very higher degree of deliberate malicious conduct and your likelihood of success is probably about zero. You likelihood of getting an attorney to help you is probably less then zero - both because the attorney will expect to get paid up front for an inordinate amount of time and because an attorney is ethically barred from promulgating a case that is frivolous. You can certainly talk to an attorney about you situation but be very very aware that the odds of anything going forward are slim. In your situation what usually a litigant strives for is to get the bad behaving spouse ordered to pay your attorney fees for making you and your attorney struggle with the case. That is probably your most obtainable goal. Secondarily it should work against your spouse in her efforts to get custody and parenting time, but the court also considers what is best for the children so that can temper the outcome. I don't agree that you are 100% barred from an action for defamation since you may be able to find statements in and out of court, but this is also a tract that is fraught with problems since the burden to prove actual emotional and monetary damages, much less the cost of paying an attorney to bring the suit, usually prevents a case from going forward. It is not the battle you want to fight. I agree that should focus on the issues at hand, the divorce and the parenting time and avoid secondary attacks. They will only make you look like the bad person both in the eyes of the court and the eyes of your children who will inevitable3 suffer more from the protracted animosity between their parents. If I were you I would take this approach. Be nice polite and firm. Comply with all court orders. Use words and the court to champion your rights in a positive way. Do not stoop to mud slinging even if that's where your spouse wants to go. In the long run you will be rewarded by the Judge and your children for being the calm in the storm. This doesn't mean you need to let your spouse walk on you. Your attorney should advocate for you and point out to the Judge when your spouse is blatantly lying and misbehaving and this should be well documented with a request for attorney fees at the end of your case. http://www.portlandlegalservices.com
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