THE BLOG
11/28/2016 10:19 am ET Updated Nov 29, 2017

A Legal Introduction to Suing a Spouse

Historically a marital partner could not sue a spouse because of "interspousal tort immunity." The historic common law viewed spouses becoming one legal person with the husband having control over the person and property of the wife. Thus, for example, there was no criminal law of marital rape, and a wife was required to have the consent of her husband to contract and obtain credit. Additionally, it was feared, allowing lawsuits between spouses would overthrow the institution of marriage, create serious social disorder, flood the courts with frivolous claims, and encourage fraudulent activity that targeted insurance companies.

This legal viewpoint significantly changed in the U.S. legal system in the 1970s with the expansion of legal rights for women. The following are several of many examples. In 1970 California was the first state to legislatively create no-fault divorce [signed by Governor Reagan]. Marital rape became a crime with Nebraska legislation in 1976. The federal Equal Credit Opportunity Act (1974) granted married women the right to obtain individual credit, and the federal Pregnancy Discrimination Act (1978) protected against firing and discrimination due to pregnancy. Supreme Court decisions echoed this trend, such as Roe v. Wade (1973), and a unanimous decision in 1986 recognized sexual harassment as a form of unlawful discrimination [Meritor Savings Bank v. Vinson].

Of course, precursors to these developments might be traced to many events including state Married Women's Property Acts in the 1800s that allowed married women to manage their own property and sue and be sued. As early as 1882 a New York intermediate appellate court decision, reversed, would have allowed a wife to sue her husband [Schultz v. Schultz]. The U.S. Supreme Court in 1910 interpreted the District of Columbia marital property statute as not allowing a wife to sue her husband [Thompson v. Thompson].

Hence, today it is possible for one spouse to sue another for both intentional (deliberate) and negligent (unreasonably careless) torts (injuries). This comment briefly provides an incomplete educational overview of spousal lawsuits. Always consult an experienced attorney in all family law and litigation matters.

The rationale for allowing interspousal lawsuits was that the injury (tort) had already disrupted any domestic harmony and that a wrongdoer should not be able to escape the consequences of his or her conduct. One might initially think of physical and emotional injuries but the contemporary approach also includes property fraud.

Statutes of limitations (time period after the injury to sue) vary from state-to-state, so do not delay legal action. In some situations, the running of a statute of limitation may be stopped ("tolled"). Many spousal torts are continuing and each new wrongful action may restart the statute of limitation. A physical or emotional injury from a tort may be latent (hidden) and possibly the statute of limitations may not begin to run until the impact is apparent. Statutes of limitation issues are complex and require consultation with an experienced attorney.

There are any number of intentional torts such as parental kidnapping of children, invasions of privacy via wiretapping, video or audio surveillance, assault (threats of harmful or offensive contact) and battery (actual harmful or offensive contact), and transmitting sexual diseases. One could easily list several pages of potential torts. Depending upon state law, the damages are both compensatory (actual dollar loss including items such as property damage, medical expense, and lost wages), punitive (damages to punish a wrongdoer), and potentially attorney fees and court costs. Of course, monetary judgments do not automatically collect themselves. So a preliminary consideration in any tort lawsuit is if there are assets or insurance coverage that might be seized or applied to collect a judgment. Most homeowner's insurance policies exclude coverage for intentional acts, among other things. Many torts are also crimes that might be prosecuted.

Some states do not allow a recovery for emotional distress without some physical manifestation of the injury. Post-Traumatic Stress Disorder (PTSD); however, produces widely recognized physical symptoms.

A different set of legal standards may govern lawsuits separate from divorce from those that arise as part of a divorce action. A major issue is what standards a given state utilizes in dividing marital property upon divorce. Additionally, attempts to reopen property divisions in a post-divorce lawsuit may be difficult.

A claim for property fraud or for a breach of duty in managing property may exist separately from a division of property incident to divorce. However, some jurisdictions only allow property fraud claims in the context of a divorce. Some jurisdictions distinguish a physical injury claim as being uniquely personal to the injured person, and hence, always allowable either within or outside of divorce. Some states have specifically addressed these issues with legislation. Transfers of marital property to third parties, such as a paramour, that are "capricious, excessive, or arbitrary" may be subject to a lawsuit for reimbursement. The overall theory is that there has been a breach of the fiduciary duty (imposing utmost honesty and fairness) that one spouse owes the other.

Actual fraud involves proof of the following: 1. An intentionally or recklessly false, 2. Statement (words or actions that communicate), 3. Of a material (significant) fact, 4. That was justifiably relied upon, 5. Producing loss or injury. Intentional action ("scienter") is key. Deliberately false statements concerning assets might be an example.

Constructive fraud, more commonly asserted than actual fraud, does not require proof of an intent to deceive. It is a fairness approach focusing on violations of confidence and public policy considerations. Giving away marital property, changing life insurance beneficiaries, or creating mortgages without the other spouse's knowledge or consent are common examples. This is especially true when transfers are made to paramours.

However, note that bad investment decisions alone do not constitute constructive fraud. "Waste" of marital property involves affirmative actions of dissipation, transfers, and gifts made in bad faith to the detriment of the spouse. However, if the spouses are in business together or one spouse holds a power of attorney for the other spouse, an additional obligation of fairness from corporate, partnership, and agency law applies.

The old doctrine of "unclean hands" penalizes one who comes to court with violations themselves of good faith and fairness. It only applies to conduct related to the specific transaction(s) in question and does not relate to issues of character or conduct generally. It might be utilized as a defense to claims of actual or constructive fraud.

This brief and incomplete educational overview of complex topic is not intended to provide legal advice. Always consult an experienced attorney in all family law and litigation situations.