confused--how do you prove something is not true if it never happened?

[happyinorbit]

What is the name of your state (only U.S. law)? Arizona

I have become totally confused as I have tried to research slander/defamation/libel.

Someone has made false and malicious comments about me and presented them as truth in a legal proceeding.
From what I can gather I only have a case if I can prove that his statements are not true. But, how do you prove things like you did not have an abortion, or cheated during a marraige or made a specific statement? It seems to me like the person making the accusations should have to prove they are true, not the accused prove they are not. How exactly do you prove something didnt happen. If it didnt happen there would be no evidence to the facts. Any help would be appreciated. Thanks!

 

[AlmostALawyer]

Who specifically made the statements in the legal proceedings and in what capacity were they acting (lawyer, witness, etc.)? Lawyers and sometimes witnesses have privileges making them immune from suit based on the content of their speech.

 

[happyinorbit]

thank you for responding.
the statements are being made by my former husband in family court. my former husband is pro-per and a licensed attorney. i believe he is making the statements to inflict harm in my marraige and to further a rift between my child (the object of the hearing) and I.

And also to bolster his case for sole custody (though my attorney told me the statements he has made are not relevant to the case for custody).

Also-- is there any course of action I can take in this matter? Perhaps there are some other legal actions I am not aware of.
Thanks

 

[Proserpina]

thank you for responding.
the statements are being made by my former husband in family court. my former husband is pro-per and a licensed attorney. i believe he is making the statements to inflict harm in my marraige and to further a rift between my child (the object of the hearing) and I.

You cannot use statements made in court as basis for a defamation action.

Even if they're outright lies.

Now, if the statements are said outside of court that's a different matter entirely....

 

[Isis1]

thank you for responding.
the statements are being made by my former husband in family court. my former husband is pro-per and a licensed attorney. i believe he is making the statements to inflict harm in my marraige and to further a rift between my child (the object of the hearing) and I.

If you are being accused of something in the court of law, and you did not say or do what you are being accused of, simply deny the allegations. In he instance of wether or not you had an abortion, a judge could care less if you had one or not. It is perfectly legal to obtain one, and perfectly legal to not have one. And a judge still won't care if you cheated in a prior marriage.

 

[TigerD]

To add to the other advice. It is logically impossible to prove something didn't happen. You can only force the other side to prove that it did.


DC

 

[happyinorbit]

To add to the other advice. It is logically impossible to prove something didn't happen. You can only force the other side to prove that it did.


DC

I agree... but how then is it that I have to prove it didnt happen?

 

[AlmostALawyer]

Respectfully, I think you may be missing the point. The allegations by your former husband are not relevant. Furthermore, you cannot take actions against/sue him for what he says in court.

Finally, when there are allegations(accusations) like you have stated in this type of a proceeding, the burden of proving the truth of those allegations (accusations) are on the person making the allegations. Example: If I say you are a crack-addict, it retains no weight/ignored, unless I can prove it. (witness testimony, video tape, some sort of admission, etc.)

 

[Proserpina]

I think OP Is less concerned about the legal ramifications than she is about the allegations possibly harming her current marriage/situation.

OP - we all know family law battles are incredibly stressful.

Have you considered marriage counseling to help with the extra stress of this one?

 

[happyinorbit]

Thank you prosperina. your are on track. My attorney as already advised that the allegations are not relevant to the case and will ask for the comments to be sticken from the record.
I am not overly concerned about my current husband. I think he understands where all this is coming from, though I can not help but think that there could be some lingering doubt in the future if things between us ever get bumpy, as things can do in marriage. It would be great if it were shown that the allegations are baseless both for my husband, but also my child, who believes everything her father tells her. It seems to me that he should be held accountable for his reckless behavior and the damage it can cause.

 

[quincy]

There ARE potential avenues you can explore to make your former husband held accountable for the false and defamatory lies he has told in court, even when a defamation action is not possible.

Your former husband is a licensed attorney. You can file a complaint with the Arizona Bar Association. They will investigate a claim that he committed perjury during a court hearing while he was under oath.

You can also consult with your own lawyer about petitioning for perjury charges to be filed against your former husband. Perjury is a Class 4 felony.

Or you can simply inform your former husband that you are considering these options if he does not retract his false statements.

No attorney wants to risk his license to possible perjury charges and a Bar investigation.

Judges in family law matters hear lies being told on a regular basis. They discount much of what is said by one former spouse about the other. I once heard a judge in a divorce case start the proceeding by saying, "Let the lies begin." No judge will use unsubstantiated claims of abortions or adultery when making a decision on custody. The law is based on fact.

Good luck.

 

[Proserpina]

There ARE potential avenues you can explore to make your former husband held accountable for the false and defamatory lies he has told in court, even when a defamation action is not possible.

Your former husband is a licensed attorney. You can file a complaint with the Arizona Bar Association. They will investigate a claim that he committed perjury during a court hearing while he was under oath.

You can also consult with your own lawyer about petitioning for perjury charges to be filed against your former husband. Perjury is a Class 4 felony.

Or you can simply inform your former husband that you are considering these options if he does not retract his false statements.

No attorney wants to risk his license to possible perjury charges and a Bar investigation.

Judges in family law matters hear lies being told on a regular basis. They discount much of what is said by one former spouse about the other. I once heard a judge in a divorce case start the proceeding by saying, "Let the lies begin." No judge will use unsubstantiated claims of abortions or adultery when making a decision on custody. The law is based on fact.

Good luck.

Excellent advice!

(as always )

 

[happyinorbit]

thank you so much! this is great advice. But now I need a little clarification. My former husband did not say this out loud in court. He wrote it all out in his response to petition. Does that make any difference?

 

[Proserpina]

thank you so much! this is great advice. But now I need a little clarification. My former husband did not say this out loud in court. He wrote it all out in his response to petition. Does that make any difference?

Has the case actually been heard and decided yet?

 

[quincy]

When you said that your attorney was going to ask that "the comments be striken from the record," I assumed your former husband said these comments aloud during a court hearing.

At any rate, the petition he signed should say that the statements made are true and then the form is signed "under penalty of perjury," which would make your husband liable for any false statements he had sworn to as the truth.

If these statements are never made in court, however, this is probably even more of a non-issue in the custody matter than it would have been anyway.