By Zhen Liu, Staff Writer
A divorce can be painful for either party in the marriage. The pain usually comes from the prolonged battle over money, property, child custody and/or parenting time. But sometimes, pain also comes from marital torts, which is wrongful behavior done by one spouse against another, during the marriage or during the divorce proceedings. A victim spouse can seek money damages against the other, like in a regular personal injury lawsuit, but with some special requirements.
If you have suffered any physical or economic injuries as a result of the conduct of your spouse, you can include those claims in your divorce complaint or counterclaim. Some examples include:
- Conversion of funds (theft)
- Economic abuse
- Dissipation of marital assets
- Defamation and slander
- False imprisonment
- Invasion of privacy
- Intentional infliction of emotional distress
- Negligent infliction of emotional distress
- Physical assault and battery
- Marital rape
- Extreme Cruelty
- Use of excessive force
- Wiretapping and electronic surveillance violation
- Infection with sexually transmitted diseases
- Battered Women’s syndrome
Kates Nussman partner Mike Farhi says that: Ex-spouses aren’t the only people at risk of being sued in a marital tort claim. For example, if the underlying tort is fraud or spoliation of evidence or hiding assets, lying about the value of assets, or transferring assets to deprive a spouse from having the asset included in the marital 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.
Statutes of limitation
Marital tort claims are generally subject to precise statute of limitation (time to sue) guidelines. New Jersey’s statute of limitations for filing personal injury claims is 2 years from the event. So if you intend to bring a claim for personal injury, it generally must be filed within that two-year time limitation.
There is an exception if you are seeking damages suffered from battered spouse syndrome, meaning that you were too psychologically impaired to take action earlier because of the abuse. In the case of Giovine v. Giovine, a New Jersey Appeals Court in essence recognized a “continuing tort” for battered woman’s syndrome, allowing the “tolling” or freezing of the statute of limitations. For example, this exception compensates domestic violence victims for years of abuse. It is important to note, however that tolling of the statute is not automatic. In order for you to take advantage of the “new tort” and thereby toll the statute of limitations, the existence of the battered spouse syndrome must be proven through expert testimony.
Why should someone bring marital tort claims?
Raising marital tort claims in a divorce could result in monetary awards to you, in addition to division of property, spousal support, and child support. Those awards can be for pain and suffering, emotional distress, medical expenses, loss of earnings and earning capacity, and for reimbursement of any money you had to spend put forth as a result of the actions of your spouse. For particularly outrageous tortious conduct, punitive damages (damages intended to punish bad behavior) may be available.
A spouse bringing martial tort claims can demand a jury trial for them. The case of Brennan v. Orban held that a major factor in a Family Court Judge in deciding whether a jury trial will be given for a marital tort action is the “divisibility of the tort claim” from other questions in dispute. When other issues, such as child custody, child support and child parenting are predominant, the court may deny a jury trial of the marital tort claim and hold a trial without a jury. However, when the marital torts are the dominant issue, the Court may order that they will be tried by a jury.
It is an unfortunate thing when you suffer any injury, whether economically, emotionally or physically. Even worse is when the perpetrator was your spouse. Filing marital tort claims in New Jersey can be tricky, because of statute of limitation requirements and the requirement that all marital claims must be brought in one case, at one time. If those claims are separated by the Family Court, you will have to handle a separate case, with another set of rule and procedures, in the Civil Court. You may need a 2nd lawyer to handle that for you. If you find yourself suffering from any type of injuries list above, remember to gather any supporting evidences and contact a Family Law attorney, who may refer you to, or collaborate with, a Marital Torts specialist.
Zhen Liu is a recent graduate from Seton Hall Law School, where she was a member of the Asian Pacific American Lawyers Association. She specializes in Family Law and serves as research assistant to associate reporters of The American Law Institute.