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Marital Torts, The New Way to Handle Fault in a Divorce?

by Laura Johnson

According to a legal dictionary, a tort is a private or civil wrong or injury that results "from a breach of a legal duty that exists by society's expectations regarding interpersonal conduct, rather than by a contract or other private relationship."

Every lawsuit has something called elements that must be present to sustain a cause of action. In a tort action, the following elements must be present:

  • there must be a legal duty owed by a defendant to a plaintiff, and

  • breach of that duty, and

  • a causal relation between the defendant's conduct and the resulting damage to the plaintiff.

A marital tort comes from incidents or behaviors that occurred between spouses, and sometimes third parties, during the marriage, even during the pendency of a divorce suit and possibly afterward in certain circumstances.

Some examples of a suit that could be brought as a marital tort action are:

  • assault and battery

  • rape

  • spoliation of evidence, negligent and/or intentional

  • infliction of emotional distress, negligent and/or intentional

  • transmission of a venereal disease

  • interference with custody

  • harassment

  • fraud

  • invasion of privacy, wiretap

  • false imprisonment

  • conversion

Ex-spouses aren't the only people at risk of being a party to a marital tort action. For example, if the underlying tort is fraud or spoliation of evidence for hiding assets, lying about the value of assets, or transferring assets to deprive a spouse from having the asset included in the marital or community estate during a dissolution of marriage, anyone who assisted in the wrongful activity is at risk. It could be an accountant, a bookkeeper, a lawyer, a stockbroker, a family member or a friend.

In addition to tort claims, some people have been successful bringing cases under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 19 U.S.C. Sections 1961-68. This permits a plaintiff to sue for treble damages and attorneys fees. Some examples of behavior that might be addressed in a RICO suit are a spouse using marital assets improperly or concealing the true amount of income during a divorce.

An option that may exist for some plaintiffs involves the federal Violence Against Women Act of 2000 (VAWA) where the plaintiff can ask for compensatory and punitive damages and attorneys fees. The elements to a VAWA action are: The defendant committed a crime of violence that rose to the level of a felony and the conduct was gender-motivated. The defendant doesn't have to be charged with a crime and the defendant's behavior doesn't have to be classified as a felony in the state where the act occurred.

An interesting area of law is developing in the area of wiretapping and the illegal interception of communications. There are federal and state laws about wiretapping and what may be legal in one state, isn't in another, or isn't in federal court. Some examples of communication interception that may be the basis for a suit are: telephone wiretaps, eavesdropping on cellular communications, eavesdropping on cordless phone conversations, downloading your spouse's e-mail files, getting records of your spouse's conversations on Internet chat rooms, or intercepting beeper messages.

Spoliation of evidence might be brought when a spouse has destroyed documents that would support a claim about real estate ownership or other interests in real estate. Not all states recognize this cause of action.

Many divorce lawyers do not discuss marital tort actions with their clients. Some lawyers who specialize in this field of law believe that when a divorce lawyer fails to explore the possibility of a martial tort action with a client, that the lawyer has committed malpractice. If you believe that your spouse may be liable to you for his or her past and present actions, bring it to the attention of your lawyer by asking, "Can we talk about whether I can file a marital tort action against my spouse?"

Don't wait until the divorce is over to ask that question. In some states a marital tort must be joined with the divorce action. If you don't bring it at the same time as the divorce, you lose forever the right to pursue the marital tort. Other states permit the tort action to be joined with the divorce but don't require it. Other states don't allow the tort action and divorce action to be joined at all. Still other states don't permit marital tort actions. In others, the courts don't really know what to do with marital torts, especially when the divorce is always a judge-tried case and the marital tort action can be tried by a jury. Be sure to ask your lawyer to explain the law of your state regarding marital torts.

There are some benefits from joining a marital tort with the divorce. The total expenses for legal fees and costs of litigation are reduced. The evidence in the divorce case can be used in the tort case. There are also some disadvantages to joining a divorce and a tort action. If the divorce action is tried by a judge instead of a jury, and the divorce judge also makes the decision in the tort action, the potential award from the tort may be much less than what a jury would award. In addition, a judge may not award the victim as much as he or she could get in a divorce action because of the award in the tort action.

The problem with many marital tort actions is that there isn't anyone to sue who has enough money to make pursuit of the action worthwhile--it's the "deep pocket" problem. Many potential suits aren't filed simply because the defendant doesn't have sufficient assets or income to permit the plaintiff to collect on any award, including an award for attorneys fees.

Sometimes the deep pocket problem can be addressed by bringing third party defendants into the cause of action. For example, a homeowners insurance company may pay on a claim for a negligence suit, police for failure to enforce a restraining order, an accountant for failing to disclose certain financial records, or a family member for helping to hide a child so a parent is prevented from having access to the child.

Many divorces are completed by a settlement or separation agreement. It is standard for many lawyers to have a boilerplate provision called the waiver. The purpose of the provision is that each spouse agrees that the settlement reached in the divorce acts as a complete settlement of any legal claims or issues that may arise from their marriage. This waiver provision has value if a marital tort is a potential suit or is already filed.

And, if you sign the settlement agreement with the waiver, you could be signing away your right to file a tort action from events that occurred during your marriage. You may still be able to file a tort action for events that occurred after the divorce or if the waiver is specific in nature instead of a general waiver. Check with your lawyer during settlement negotiations.

Finally, if you believe that your spouse may have a marital tort cause of action against you, discuss it with your lawyer. It is possible that you may make certain admissions or statements during deposition testimony, answers to interrogatories, or in a trial. Those admissions could be used by your spouse or ex-spouse to support a marital tort action. The same goes for any findings made by a judge regarding your conduct during the marriage.

Always discuss marital torts with your divorce lawyer. If you think that you have been a victim of your spouse's misbehavior, describe the behavior to your lawyer and then ask, "Is that behavior the basis for a potential marital tort action?" Don't be shy or embarrassed to tell what happened. Your lawyer needs to know so he or she can appropriately advise you of your legal rights and opportunities.

If you think that you face the risk of being the defendant in a tort suit, tell your lawyer about the behavior that you believe may put you at risk and ask, "Does that behavior put me at risk for a marital tort action, and if so, what can we do in the divorce action to protect me from it in the future?" One caveat to admitting bad behavior, especially secreting of assets or lying about income, you may find yourself looking for another lawyer.


The author and publisher of this article have done their best to give you useful and accurate information. This article does not replace the advice you should get from a lawyer, accountant or other professional if the content of the article involves an issue you are facing. Divorce laws vary from state-to-state and change from time-to-time. In addition, it is a very fact-specific area of the law, meaning that the particular facts of your marriage and divorce, as well as other external factors may determine how the law is applied in your situation. Always consult with a qualified professional before making any decisions about the issues described in this article. Thank you.


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