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.

by Laura Johnson

This chapter from Divorce Strategy was excerpted in all of the Fall 1998 U.S. editions of Divorce Magazine. The article is titled Charting Your Expenses in the Money Matters section.

How Much Does It All Cost?

Your cost to maintain an established lifestyle consists of all the expenses you pay from all your income sources, including loans. In a divorce you will hear the phrases “maintain a lifestyle to which your family is accustomed” and “reasonable needs”. There is an inherent conflict between the concepts of lifestyle and reasonable needs. The cost to meet the reasonable needs of your family may be much different than the cost of your lifestyle.

Webster’s Dictionary defines lifestyle as the “consistent, integrated way of life of an individual as typified by his manner, attitudes, possessions, etc.”. Reasonable needs are those things necessary to sustain a family with the basic requirements. The qualifier “reasonable” adds the limitations of not excessive, extreme or immoderate. Your family’s lifestyle and reasonable needs are the twocomponents of expenses that play a part in a divorce.

The difference in the definitions between “reasonable needs” and “lifestyle” becomes painfully obvious when a divorce court sets an amount of money for child support or spousal support. Quite often, the support amounts do not satisfy either spouse’s expenses to maintain previous lifestyles or the family’s current reasonable needs. This may lead to each ex-spouse being angry or bitter. These feelings are a result of each spouse believing that he or she is either paying too much or not receiving enough money for support. In reality, both spouses have to make adjustments in how they each pay for their needs and maintain their lifestyle.

Historical and Current Expenses

Your first step to determine the cost for your family’s lifestyle is to gather documents showing how your family has spent all the family money over a period of time. Several years worth of records are optimum, but records beginning one year prior to any separation may suffice. Some of the records you need are: bank account registers, canceled checks, paid bills, credit card statements, loan papers and cash receipts.

Software for financial record keeping is very helpful if you have a computer. A manual system takes longer to put together, but can be just as effective. For the manual system you need a 14 columnar pad, an adding machine or calculator, a good eraser and pencils. Use the worksheets at the end of this chapter as guidelines for setting up your own worksheets on separate sheets of paper.

To keep better track of expenses, change some of your spending habits. Start paying for as many expenses as possible with a credit card or check. Keep a daily log of any cash purchases. If you use a debit card to buy groceries and get cash back, note the amount of cash you received. Also, be sure you do not include the cash you received as a part of your food expense. Enter your current daily expenses under the proper categories into your daily or weekly worksheets. At the end of a month, add up all of your weekly expenses by category to get a monthly total for each category. Write that number in the proper space for each category expense for the month listed in your annual worksheet.

Continue keeping track of your daily and monthly expenses, transferring your monthly totals into a yearly worksheet listing your categories of expenses paid in that month. Total each month’s expenses and total each category for all the months you have entered data. Add all the month’s totals and divide by the number of months to get an average monthly total for each expense.

Organizing Your Records

Another example is credit card charges made to a child’s clothing store. This is a clothing expense and the children benefit from the purchase. List the expense under the clothing category for the children. The next step is to review each canceled check, paid bill or receipt and credit card statement to categorize all the transactions. At the same time you are categorizing the expense, record it into your system. Use the model worksheets on pages 165, 166, 168 and 169 to set up your recording system. Examples of some category listings are on pages 167 and 170.

Enter the expenses that you pay annually in the month you make the payment. Examples of these expenses are real estate taxes or insurance premiums. If you do not pay all your credit card bills in full every month, make a notation of the full amount of the bill and the amount you paid. Be sure to make an adjustment deducting the amount you carried over from the previous month when you make an entry in the following month. You want to list only the unpaid balance for the new charges each month to avoid a double entry for any balance carried over from a prior month or billing cycle. In some instances, the payment you make on the balance owed may be a monthly expense. Do not forget categories for interest, penalties and late fees.

Direct and Indirect Expenses

Once you have your family’s expenses listed and categorized, allocate them further into direct and indirect expenses. Direct expenses are the expenses incurred specifically for a particular family member. Indirect expenses are the costs for housing and other types of expenses necessary to maintain your family’s lifestyle. Examples of direct expenses are: tuition for a child to attend a private school, college tuition and room and board, clothing, medical expenses or music lessons. Some indirect expenses are: rent, mortgage payment, utility bills, automobile loan payment or insurance. In some cases, a payment of automobile insurance can be a direct expense if it is paid for a teenager to drive a car. Once you have compiled the worksheets for your family’s expenses, compute the average monthly total for the children’s indirect expenses and direct expenses.

© 1997 Broken Heart Publishing

Divorce Lawyer Questionnaire

by Laura Johnson

One of the most frequently asked questions about hiring a divorce lawyer is, “What questions do I ask?” To help you ask the right questions so you get the answers you need during an interview of a divorce lawyer, the Divorce Lawyer Questionnaire is copied from Divorce Strategy.

Attorney Questionnaire

Use the following list of questions to conduct an interview and learn information about a divorce lawyer before you hire that person to represent you.

• How long have you been practicing law?
• How much of your entire practice is specifically in family law?
• What is your hourly rate?
• Do you have other people who usually work on your cases with you? If so, what is their profession and experience? What do you charge for their time?
• What do you anticipate is the role that these people will have in my divorce?
• What is the retainer amount? Is any of it refunded if I should change my mind or we decide to not go through with the divorce?
• What other types of charges besides attorneys fees will there likely be? (long distance telephone, copies, facsimile charges, etc.)
• Describe a time line for how you believe my divorce will progress.
• Do you have a set procedure for handling a divorce case., If so, please describe how you would proceed with a typical divorce case.
• What do you expect from me as a client?
• What percentage of your divorce cases are resolved by a trial versus the percentage that are settled?

One question that isn’t on this list is: “Given the facts of my case as I have presented them to you, what do you believe is the best, reasonable outcome that I can expect to get from the divorce?” Unless you are paying for a consultation, most divorce lawyers will not answer that question in full until after you have hired him or her to represent you in your divorce. Even then, some divorce lawyers will “hem and haw” and tell you that there’s no way to know what the outcome be as it is all in the hands of the court. You shouldn’t accept that answer. The answers to these types of questions are very important to you as they will become the basis for your evaluation of any settlement proposal. Keep pushing for specific answers to specific questions.

Divorce Action Plan

by Laura Johnson

The following information is excerpted from the Divorce Action Plan in the Appendix of Divorce Strategy. There are only 5 steps for each divorce phase shown here. The Divorce Action Plan in the book lists many more things to do and not to do.

Two of the most difficult things for you to do when you’re involved in a divorce is to concentrate on small details and to keep on track with your game plan. The Step-by-Step Divorce Action Plan is designed to keep you focused and organized. Refer to it during the different phases of your divorce. If possible, view your financial divorce as the separation of a business partnership.

Before Filing for Divorce

This is the time when you and your spouse are discussing the possibility of divorce. You may be in marriage counseling or individual therapy to save your marriage. It’s also the time to start your financial planning for a possible divorce.

• Gather historical financial documents such as tax returns, banking records, real estate purchase and sale documents and any other records pertaining to your assets. Use the information in Divorce Strategy to prepare your preliminary worksheets.
• Find a good divorce lawyer using the information in the Divorce Lawyer Questionnaire to help you in your search. Use your completed a Personal Information Planner to more efficiently utilize your time when you interview a prospective lawyer to learn about your potential risks and results if the divorce truly occurs. Start your divorce financial planning.
• Avoid stressful situations and conflict as much as you can. Plan any pre-divorce discussions with your spouse so that they occur in a neutral location. Avoid involving your children, friends and relatives in your divorce.
• If you and your spouse can have reasonable, somewhat amicable discussions about settlement, begin pre-settlement negotiations. Start with a full disclosure of the information about your income, assets, liabilities and expenses.
• If divorce is imminent and you and your spouse can’t communicate to work out your divorce settlement or if one of you is more in control and more powerful than the other, move on to the next step. Don’t waste time and energy on trying to work out an agreement until you are both on a level playing field.

Divorce Filed and Pending

Once you or your spouse have made the decision to go ahead, certain events occur whether you want them to or not. It is an extremely stressful phase. Do things in small chunks. Avoid trying to do everything at once. Manage your time so that you have a set relaxation period every day. Pay more attention to your needs and to those of your children.

• If your spouse hasn’t already done so, file for divorce. Your lawyer will file a petition, financial statements and other documents with the court. This begins the legal divorce process. Ask your lawyer to explain the progression of a divorce case through the court system where your case is filed.
• Take any mediated or negotiated settlement to your lawyer for review and comments. If you and your spouse do not have an agreement, work with your lawyer to come up with a proposal or encourage your spouse to submit a proposal to you and your lawyer. Don’t turn control of your divorce over to the lawyers.
• Work on your divorce financial plan using the worksheets and ideas in Divorce Strategy. Research other sources for additional information. Organize your paperwork. Keep it up to date.
• Make your own decisions. Be reasonable and receptive to new ideas and constructive suggestions. Accept responsibility for the outcome of your divorce. Work toward a settlement of your divorce. If settlement of all issues is impossible, agree with your spouse on as many issues as possible. Reserve any remaining disputes for a trial.
• Make plans and set goals for your finances after the divorce. Be realistic. Review and revise your goals on a regular basis as your circumstances become clearer.

After the Divorce

Your legal divorce is over. Now the wrap-up of your financial and emotional divorce begins. Keep meticulous records of your financial separation. Plan for your future. If you have residual feelings of anger or bitterness, get counseling to work through your feelings. If not, you will always be held back by your past. Strive to keep your emotional divorce separated from your financial divorce. Don’t confuse child custody and relationship issues with money issues. See the Divorce Recovery Journal for some great tips for help you through the healing process after divorce and to help you get on with life.

• Do what needs to be done to transfer ownership of assets. If you haven’t already done so, close all the credit cards, charge accounts or bank accounts in joint names so your ex-spouse’s name is removed from the accounts.
• Keep copies of any support checks you have paid or received. Keep an ongoing accounting and ledger of the payments. Make sure all the necessary documentation has been done if payments are going to be made by a wage assignment or through the courts. Keep the employer and/or the court clerks advised of any address change. Prepare and send bills to your ex-spouse if late payments or account balances are a problem.
• Prepare a financial plan for the next year. Set short, medium and long range goals. Make arrangements to pay any bills left over from the divorce or marriage. Start saving whatever you can, even if it’s only a few dollars each month. True Prosperity has some terrific ideas to help you with your financial planning.
• Prepare a post-divorce timetable for future events, such as an anticipated change in an amount of child support due to a child graduating from high school or a date when you are to pay your ex-spouse a certain amount of money.
• Live a happy, fruitful and prosperous life after your divorce. It’s the best revenge you can have against your ex-spouse.

© 1997 Broken Heart Publishing

Disclaimer

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.

LOS ANGELES (April 17) - Wayne Brady is officially single again.

The 35-year-old comedian has been living separately from his wife, Mandie, for four years, but the couple’s divorce was just finalized this week. The couple used a counselor to arrive at a final divorce settlement. Details about their child custody, child support and property split arrangements were not made public.

Sorry the user removed the video from You Tube

• Poor communication
• Financial problems
• A lack of commitment to the marriage
• A dramatic change in priorities
• Infidelity

• Failed expectations or unmet needs
• Addictions and substance abuse
• Physical, sexual or emotional abuse
• Lack of conflict resolution skills