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.
Divorce Schemes & Power Games
Divorce can be a dirty business when in the hands of lawyers who play power games to gain an unfair advantage over the other side. The same applies for angry, vindictive soon-to-be ex-spouses who have a “win at all costs” attitude. If this happens in your divorce, there are few things that you can do to control the other side, but there are several things you can do to prepare and manage the divorce.
The first thing to do is recognize a scheme and power play when you see it. The second thing is to not lose your cool and try to fight fire with fire. It will only cause things to escalate and your entire family will suffer. The final step is to think ahead and plan positive steps to counter your spouse’s power game. Get outside help if necessary.
The following list has descriptions and examples of some of those nasty tricks lawyers and their clients will sometimes pull. If your lawyer recommends that you do this, he or she is setting you up to take unfair advantage of your soon-to-be ex-spouse. If you do these things, don’t be surprised if your actions come back to haunt you after the divorce!
- Take the money out of jointly held bank accounts, put it all into an account in your name alone and don’t tell your spouse about it beforehand. Then let your spouse handle the problems associated with covering the bounced checks. This causes the most confusion and distress if your spouse usually writes the checks to pay the household bills.
- Use credit cards to purchase and stock up on personal items or make large purchases. Make sure to use the cards for which your spouse is the primary cardholder. This is especially effective at the beginning or near the end of a divorce. One lawyer actually told her client to go out the day before the settlement hearing and use her husband’s credit cards to purchase all the items she needed to set up her new household. Her husband would then be stuck with the bills because he had agreed to be responsible for the debt on his credit card as of the day of the divorce, which he didn’t know contained the charges made by his wife.
- If you have moved out of the family home and are the primary source of income for the family, refuse to pay any household bills or send any support until you are forced to do it by the court. This is one of the steps in a routine called “Starve Out The Other Spouse”. The goal is to get the other spouse in a financial position where he or she, out of desperation, will accept an unfair settlement.
- If your spouse doesn’t have an income withholding order, wait until the latest possible day to pay support money, even if you’ve got the money to send. In some states support doesn’t become delinquent until it’s 30 days past due and your spouse can’t do anything to you until the 31st day. Never mind that your spouse just might need the money to pay bills or buy things for the children.
- Petition the court for primary custody of your children when you will actually agree to a joint custody or visitation arrangement. The real purpose for the request is to strike fear into the heart of your spouse and use it as a club to get your spouse to give up on something else, usually a financial issue.
- Refuse to speak with your spouse about anything, including arrangements for him or her to have parenting time with your children. This falls into the category of a tactic used by some lawyers to create conflict, create issues that don’t need to exist, increase legal fees and wear the other side down. It can also cause a serious break in parent-child ties if the noncustodial parent doesn’t get to see the children because he or she can’t set up any parenting time.
- File a bogus petition to have your spouse excluded from the family home under your state’s protection from abuse laws.
These are just a few of the sneaky things that can and have happened in divorces. They are sometimes successful, but are very destructive to any meaningful and fair settlement discussions. In addition, the residual hard-feelings and bitterness they can leave after the divorce could hamper you and your ex-spouse’s ability to effectively co-parent your children. What’s more, they often lead to post-divorce legal proceedings costing additional and unnecessary legal fees which most recently divorced people can ill afford.
Getting a divorce is really just a risk/reward type of thing for some people. Is the risk and potential loss if you get caught by your dirty tricks worth any potential benefit, financial or otherwise, that you might get if you win the game? Think about it? Are you really the winner — or are the lawyers the real winners?
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.
Selecting a Divorce Attorney by Munish Dev Rathee
Selecting a divorce attorney is a vital decision making process. The person who you take on will be liable for obtaining or maintaining your custody rights to your children, your property interests, and depending upon the side you are one, either minimizing or maximizing your support rights. In reality, choosing a divorce attorney is also an very stressful experience. You have to be right in choosing your attorney otherwise you will have to suffer a lot.
There are few tactics which you should remember before selecting an attorney. Before you even begin, you need to identify the type of case that you will be involved in. Will you be mediating your divorce? Will you be negotiating? Or, will your case be one of those cases that go to court and become a knock down, drag out divorce litigation? There are divorce attorneys who specialize in these different types of cases and you need to appoint the type of divorce attorney who is best suited to the type of case that you have. If you need to deal with a knock down, drag out litigation, you do not want a mediation attorney trying to defend your interests. Likewise, if you are going through mediation, the last thing you want is a divorce attorney who will try to build issues and move you in the direction of litigation.
The very first step in selecting your attorney is to identify your case. Next, start asking people for help. Since the divorce rate in the United States is at about 50%, chances are you know at least several people who have been through a divorce. Ask about their process, how they selected a divorce attorney, and how their attorney performed for them.
After getting the list of attorneys from other persons you should start looking for their profile from the internet by visiting their websites. Many divorce attorneys have websites, write articles, and advertise on divorce portal websites. By visiting their websites you come to know how they deal in different cases and some of them had posted case study to know what’s are the different tactics used by them to deal different type of cases.
After you have reviewed the divorce attorney websites, make a list of at least two and as many as five divorce attorneys who you think you will be comfortable speaking with. Take appointment by calling in their offices in working hours. Some of those attorneys will charge you for a consultation; the more experience the attorney has, the more likely that you will have to pay for time with that attorney.
When you attend a discussion with a divorce attorney, be prepared. prepare a small history of your case which going to help you out while discussing your case with him/her. If you or your spouse has filed any papers in court, make sure you bring them with you. Bring one or two years tax returns or a recent financial statement so that the divorce attorney can review some of your financial data before being asked questions about “results”.
Make sure you ask each divorce attorney questions about how that attorney’s office operates in response to client phone calls, emails, or other inquiries or needs. If you will be working with a divorce attorney who has no other attorney in their office, be prepared to wait in line when you have a need for a response. That attorney will have other clients who have needs just as significant as yours, and an attorney can be responsive to only one client at a time. Even with that disadvantage, there may be a divorce attorney who you feel is just right for you who is also a solo practitioner. That is a trade off that you may have to get comfortable with.
After you have finished all of the consultations and reviewed the answers to all of your questions, decide which divorce attorney you felt most comfortable with and which one you believe will work with you to get the type of results that you want.
About the Author
Munish Rathee working for Visibility Partners, the client sites he is working on are Naperville Divorce Attorney, Sonoma County Divorce Attorney, New Jersey Divorce Attorneys.