A long time ago, spouses were not able to sue each other for torts, or certain “wrongs” done to one another because of a doctrine called “spousal immunity.” That doctrine has long since gone by the wayside, opening the door for divorcing spouses to sue each other for various types of civil “wrongs” called marital torts.
Today, more and more spouses are bringing martial torts, also known as Tevis claims, claiming that their partner gave them a sexually transmitted disease as a result of an extra-marital affair. Having your spouse cheat on you is painful enough. Add to that the contraction of herpes or other type of STD and the betrayal a person feels can be immeasurable. Spouses are seeking monetary compensation to make up for the damage that contracting an STD has either done to them, or can do to them in the future.
While it is possible to file a Tevis claim against your spouse seeking monetary damages, these types of claims are subject to certain rules: Regardless of the statute of limitations on a tort, the “single controversy doctrine” requires a spouse going through a divorce in New Jersey to raise any claim for marital tort in conjunction with the divorce action, or risk losing the right to raise it later. This does not necessarily mean that the family court will resolve the tort claim. The court will consider the circumstances and decide whether or not the tort claims are sufficiently related to the underlying divorce action so as to require joint resolution. The court also has discretion to sever the claims and order the tort claim to be tried separately.
The reason why the courts in New Jersey require a spouse to bring their tort claim during the divorce is really a monetary reason. Any cash award that would go to the injured spouse would likely come out of the marital assets, meaning the injured spouse would get paid from the other spouse’s share of any bank accounts or other marital property.
Like with any type of lawsuit, if you sue your spouse for giving you an STD, it is your burden to prove that to the court. You would certainly have to provide medial proof in the way of testimony by your physician who would appear in court on your behalf and perhaps provide a medical report to the court proving that you indeed have the STD and their opinion on when the disease was contracted, if they can form that opinion. It can be challenging to prove that your spouse was the source of the STD, especially in cases of HPV (human papilloma virus) where it is difficult to show that the man in the relationship is the source of the virus. Your sexual history, as well as that of your spouse, will be questioned. Obviously, this type of court proceeding can be extremely uncomfortable to go through.
The amount of money awarded to an injured spouse as a result of a marital tort (STD, assault, sexual assault and others) varies case to case. In a recent Louisiana case, the Supreme Court in that state awarded $125,000 to a divorced wife who claimed that her former husband transmitted genital herpes during the marriage.
Do You Have a Marital Tort Claim?
If you feel as though you have a martial tort claim against your spouse, it is strongly recommended that you seek the advice of a competent family law attorney experienced in these types of claims. The rules and laws governing these types of matters can be complicated, such as how long you have to file your claim.
According to Bari Z. Weinberger, founding partner at Weinberger Divorce & Family Law Group, “…for spouses—both husbands and wives—who find themselves in situations where the wrongs that led to a broken marriage have crossed the line into wrongs that require legal action, filing a tort claim is a powerful way to feel like justice has been served.”
If you are facing a situation where filing a martial tort may be appropriate, our skilled attorneys can explain your options and help you understand your rights. Please contact us today to schedule your free confidential consultation.