Insights Into How Our Legal System Works

Marital Torts: When Divorce Is Not Enough

30 March 2015 by Yolanda Lane

Marriages end for all sorts of reasons. Sometimes, it's nobody's fault – the two spouses were simply incompatible, or grew apart over time. And no-fault divorce laws have made it easier for people in unhappy marriages to cut their losses and get out quickly. But what happens when one partner is at fault – when their actions have not only contributed to the end of the marriage, but also injured their partner? In some states, you may be able to sue your spouse for damages in addition to divorcing them. This legal action is known as a marital tort. Take a look at a few things you should know about suing your ex.

What Can You Sue For?

Like any lawsuit, a marital tort is only appropriate if your spouse's actions have injured you in some tangible way. For example, if your spouse was physically abusive, you could file a claim against them for compensation for the injuries you received as the result of the abuse. If your spouse was unfaithful and contracted a sexually transmitted disease, and then spread that disease to you, you could sue them for endangering your health.

When Should You Sue?

If you're interested in suing your ex-spouse under a marital tort law, you should bring it up with your divorce lawyer as soon as possible. The laws in regards to marital torts vary wildly depending on what state you're in.                                                                                  

For example, in California, the tort action is considered to be separate from the divorce, which means that the issues involved in the divorce and the issues raised in the lawsuit will be dealt with independently. The tort is not part of your divorce proceedings. You could wait until after your divorce is finalized to sue, or you could begin the tort proceedings during the divorce. However, in New Jersey, marital torts must be filed along with the divorce proceedings, and if they aren't, you lose your right to file them at all. Spouses filing marital torts in New Jersey may have the tort considered along with the divorce, or the judge might sever the two issues and have them heard independently.

Your lawyer is in the best position to tell you what the rules are in your state.

Is it Worth Suing?

Whether or not to sue when you've been injured is a very personal decision, and it's ultimately up to you. However, you should take the time to weigh the idea carefully before proceeding.

If you know that your spouse is judgment-proof – in other words, if you know they don't have enough money to pay a judgment against them and they don't have anything for a debt collector to collect – then in may not be worth rehashing painful moments of your marriage in court for a lawsuit. On the other hand, you may feel that it's worth it to send a statement to your ex about their behavior.

Be upfront and honest with your attorney about the issues in your marriage – don't hold back out of embarrassment. In order for your lawyer to advise you, they need to know the details of your spouse's behavior. With that information, your attorney can help you determine whether or not a marital tort is a good course of action for you. 

For more information, contact Dianna Harris, Attorney or a similar legal professional.

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