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Marital Tort Claims in Divorce

Marital Torts: Interspousal, Domestic Torts and Fault-Based Claims in Divorce Explained

Divorce is painful for almost everyone who has to face it, and many people going through divorce feel deeply injured by their spouses. In some cases, however, the injury goes beyond the common emotional injuries that so often accompany divorce. Some injuries amount to “marital torts.”

What exactly is a marital tort? Some kinds of marital tort are easy to identify, usually due to their egregious nature, others are less well known. Examples can include:

  • Infection with an STD 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

There are many other actions, however, which may amount to marital torts.


Defining Marital Torts

“Tort” is a broad legal term meaning an accidental or intentional wrongful act that injures another person. Civil law suits are often based on torts. Most people are familiar with tort actions based on personal injury or interference with property, but a vast number of other actions can also be torts. A few examples include fraud, invasion of privacy, false imprisonment, malicious prosecution, defamation, and breach of fiduciary duty. Many torts are also crimes, but a victim seeking monetary compensation (also known as “damages”) must bring a civil lawsuit separate from any criminal action. Recovery in a successful tort case may include compensatory damages for things like pain and suffering, emotional distress, medical expenses, and loss of earnings and earning capacity. For particularly outrageous tortious conduct, punitive damages may be available.


In the simplest terms, a “marital tort” is any tort inflicted by one spouse upon the other during marriage.


There are a few torts that relate specifically to marriage, such as fraudulent inducement to marry or dissipation of marital assets. There are other torts that are not specific to marriage, but frequently arise within the context of a marital relationship. Unfortunately, infliction of personal injury is one of these, as domestic violence is shockingly prevalent in our society.

Torts are ordinarily subject to “statutes of limitation.” This means that claims for tortious injury must be brought within certain time limits, depending on the nature of the injury. For example, a victim of a physical assault ordinarily has two years following the assault to bring a civil claim. Under certain circumstances, however, a statute of limitations can be “tolled” (stopped from running) for varying periods of time. New Jersey recognizes a tort called “battered woman’s syndrome” that allows victims caught up in a cycle of domestic violence to be compensated for abuse that occurs on a continuing basis, without each separate instance of abuse being subject to a statute of limitations. Proving battered women’s syndrome requires expert testimony in court.

In years past, courts did not recognize marital torts at all. A wife’s legal identify was considered to merge with her husband’s upon marriage, preventing either spouse from suing the other. Over time, as women gained civil rights, this fiction of a unified marital identity began to dissolve. In New Jersey, courts gradually abrogated interspousal tort immunity in a series of cases culminating with the 1979 Supreme Court case of Tevis v. Tevis. Marital tort claims are sometimes called “Tevis claims.”


Raising Marital Torts in a New Jersey Divorce Case

While interspousal immunity for marital torts in New Jersey is a thing of the past, Tevis claims remain subject to certain restrictions. 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.

Some people think that application of the single controversy doctrine to marital torts is unfair. The rationale is easier to understand, however, if one considers that the legal remedy for a tort is financial compensation. Unless there is an insurer who will defend the claim and pay any damages awarded, any financial recovery against a soon-to-be-ex-spouse or a co-parent would likely come out of property available for equitable distribution or funds available for alimony or
child support, creating a fundamental difference between this type of tort claim and a claim against a stranger.