WHAT IS A MARITAL TORT?

A marital tort is nothing more than a traditional tort claim by one spouse against another. It may be contemporaneous with a crime, such as assault and battery, stalking, or rape.¹ It may also encompass negligent or intentional infliction of emotional distress, fraud, harassment, false imprisonment, invasion of privacy, intentional parental alienation, and others such as transmission of venereal disease, conversion, and negligent/intentional spoliation of evidence.²

Only five years ago, it appeared that the actual use of marital torts was uncommon. Practical and legal considerations made attorneys, and judges, hesitant to venture outside their comfort zone of traditional divorce litigation.

HAS THE USE OF MARITAL TORTS INCREASED?

The use of marital torts has expanded the toolkit available to the family law bar but remains the exception to typical divorce litigation.

As one judge has said:

I’ve had just a few marital tort claims associated with divorce actions, typically in a two-count divorce complaint. In the earliest one I remember, the wife alleged revenge porn against her husband, for threatening to post, and then posting, a nude picture of her on the internet. I believe the complaint alleged invasion of privacy and/or intentional infliction of emotional distress.³ I determined the marital division of property first, then awarded her $20,000 in damages from his share of the modest marital estate.⁴

The judge also reported

a couple of cases in which assault and battery was the second count in the divorce complaint. The most recent one was when I awarded a husband $18,000 in damages for A&B, following a couple of years of recurring threats and a few acts of physical violence, ending with the wife’s arrest and criminal conviction. Husband sustained a soft-tissue back injury, followed by several months of intermittent doctor visits and physical therapy. I wasn’t persuaded his injuries were permanent, but he had out-of-pocket medical expenses of a couple thousand dollars, and pain and suffering. Again, I divided the assets and liabilities, and then awarded damages against wife’s share (which I offset against her equity interest in the marital home).⁵

APPELLATE DEVELOPMENTS IN MARITAL TORTS

The 1983 Michigan Court of Appeals opinion in Goldman v. Wexler⁶ stands for the concept that a plaintiff was entitled to maintain a tort action against defendant for a battery committed during the marriage, after their divorce settlement. In that case, the Court of Appeals rejected defendant’s argument that “because the property settlement which was incorporated into the divorce judgment took into account the fault of the parties and because plaintiff received at least partial compensation for the injuries she suffered as a result of the alleged battery, res judicata precludes this action.”⁷ The Court of Appeals reasoned that “the subsequent action is based upon a different cause of action from that upon which the prior action was based” and it was not “actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.”⁸

The Court stated:

The prior action between these parties was one for divorce based on the Michigan no-fault divorce statute. The present action is for a battery which is alleged to have occurred during the course of the marriage. Although we agree that fault continues to be a consideration in property division disputes in a divorce action, we cannot agree, nor does defendant seriously contend, that both claims constituted but a single cause of action. Consequently, this claim is neither barred by, nor merged into the divorce judgment.⁹

The very few cases that have discussed marital torts in the last five years do so in the context of subsequent tort actions rather than tort claims brought contemporaneous with the divorce.

In one, Goldman was cited with approval in a bankruptcy proceeding to the effect that “consent judgments are not to be given collateral estoppel effect.”¹⁰ There is an important exception, however — if the parties have entered into an agreement expressly “‘manifesting an intention that the judgment be conclusive with respect to one or more of the issues,’ the consent judgment may be given collateral estoppel effect as to those issues.”¹¹

A 2021 Connecticut decision cited Goldman, as well as a later Michigan Court of Appeals case from 1987, McCoy v. Cooke,¹² in allowing post-divorce tort claims to proceed:

Even if [the prior court decision] found that the defendant used the credit card and financial account in an unauthorized and fraudulent matter by clear and convincing evidence, the doctrine of collateral estoppel would not preclude the plaintiff from bringing a claim of conversion. In other words, while collateral estoppel could preclude the parties from relitigating the issue of whether the defendant committed the act of conversion or the extent to which she committed it, it does not preclude a tort action to recover on the conversion claim. In McCoy the Michigan Court of Appeals made this point clear in very similar circumstances.¹³

SOME PRACTITIONERS ARE WARY OF USING MARITAL TORTS

Some attorneys question how marital torts — with their implicit allocation of fault — could coexist with the concept of no-fault divorce:

Marital torts vs No fault divorce. The concept of alleging marital torts has merit, but I think you would encounter significant evidentiary issues. Moreover, these torts are subterfuge for fault … [in] spousal support considerations. These spousal support considerations dovetail with custody matters to the extent they impact the best interests of the child. Marital torts undoes no fault divorce, and I object on behalf of all those folks who can’t afford to fight it out. It’s wrong. Clever, but wrong.¹⁴

Another wrote:

I understand your position, but it seems to me that it is more equitable to argue it during a divorce than after when they have already been compensated for the “fault.” This way the court can analyze the entire case and do what they think is equitable without a potential double dip in a separate suit.¹⁵

LEGAL AND PRACTICAL CONSIDERATIONS

Including marital tort claims along with a petition for divorce has the benefits of efficiency, allowing all claims to be determined by the same trier of fact. It may bring comfort to a client who doesn’t want to face — or pay for — subsequent litigation. It also provides the opportunity for practitioners to partner with other attorneys, and present a formidable team and litigation advantage, with additional “bargaining chips” for settlement.

However, it may be wise to consider bringing marital torts afterwards, where family law practitioners and judges may find themselves in unfamiliar procedural territory, especially if a jury trial is a possible consideration. Hence, make sure to preserve tort claims for subsequent litigation, especially where there have been helpful findings of fact on your client’s behalf. Ensure that a divorce judgment does not contain a bar to later litigation. Take into account the possibility of counterclaims or other SLAPP-like responses.

Weigh the considerations of collectability and the impact of continued litigation on the client’s resources and their efforts to build a new life, especially if children are involved, and whether further litigation will pose a risk to your client’s personal safety. But if a divorce resolution does not fully compensate your client for having endured significant misconduct, after taking into account the factors above, consider consulting or partnering with a marital tort practitioner for asserting your client’s right to gain full justice for the harm done to them.