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Beyond Irreconcilable Differences — Marital Torts

When contemplating divorce many people fail to consider other causes of action that should be raised in a Complaint for Divorce and risk being barred from making a claim in the future.  In file000799318829addition to asserting one or more of the statutory grounds for divorce, such as irreconcilable differences, a Complaint for Divorce may contain tort claims, including those of marital tort.  A marital tort encompasses various differences for which a complainant may seek monetary damages.  Such torts may include being infected with a sexually transmitted disease by one’s spouse, physical assault and battery, marital rape, wrongful death, intentional infliction of emotional distress, false imprisonment, use of excessive force, defamation, wiretapping, battered women’s syndrome or attempted murder. However, “marital tort” is a broad term which may include injuries not listed. Raising these claims in the divorce action could result in a monetary award to the victim to be paid in addition to equitable distribution, spousal and child support.

Rule 5:1-2(a) directs that the following actions shall be cognizable in the Family Part: “Civil Family Actions Generally. All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part. Such actions shall include all actions and proceedings provided for in Chapters II and III of Part V: all civil actions and proceedings formerly designated as matrimonial actions; all civil actions and proceedings formerly cognizable in the Juvenile and Domestic Relations Court; and all other civil actions and proceedings unique to and arising out of a family or family-type relationship.”   The language in Rule 5:1-2 parallels the language in Rule 4:3-1(a)(2), but neither rule defines “… all civil actions in which the principal claim is unique to and arises out of a family or family-type relationship.”

In New Jersey, the polestar case governing martial torts is Tevis v. Tevis, 79 N.J. 422 (1979). In Tevis, the wife sued the husband for damages resulting from the husband physical beating the wife. Prior to the decision in Tevis, the New Jersey Supreme Court in Merenoff v. Merenoff, 76 N.J. 535 (1978) overturned the doctrine of spousal immunity which previously prevented one from suing  one’s spouse for injuries proximately caused by the conduct of that spouse.  In Tevis, the Supreme Court held that “that the abolition of the doctrine [of interspousal immunity] pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of intentional behavior such as gross negligence, recklessness, wantonness, and the like.” However, the Court applied the single controversy doctrine to bar the ex-wife’s claim. The “single controversy doctrine” requires a spouse going through a divorce in New Jersey to raise all claims including a marital tort within the Complaint for Divorce. Failure to do so could result in losing the right to raise that claim later. Even if the marital tort is raised in the Complaint for Divorce, it does not mean that the family court will resolve the tort claim. The marital tort must be sufficiently related to the underlying divorce action so as to require joint resolution. However, even then, the court could sever the claims and try the tort claim, which may require a trial in front of a jury, to be tried separately from the divorce.

Consequently, when preparing a Complaint for Divorce it is important to obtain legal counsel to ensure that all of your rights are protected and to ensure that you bring all issues before the Court that need to be addressed in the requisite pleadings.   The attorneys at the law office of James P. Yudes, A Professional Corporation are available to assist you.