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.