Family Law Advisor®
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In his case which is entitled G.A.W., III vs. D.M.W.,husband is pursuing reimbursement for out-of-pocket expenses and emotional distress caused by the wife's claims that the children born during the marriage were his biological children.

Most tort claims between spouses involve domestic assault (including threats) and other violence in the household which results in a physical injury or even emotional distress. In order for a claim of emotional distress to be effective, there must usually be medical documentation of the distress either manifesting itself physically or psychologically (eg. ulcers, panic attacks, depression). Additionally, successful lawsuits have also been brought when one spouse infects the other with a sexually transmitted disease that he or she should have know they carried.

Though these tort claims may be brought as part of the divorce process, there is no requirement for that to occur. If a spouse has a potential tort claim, it may be preserved only if a divorce settlement does not include a general release of all claims between the parties. There are several issues that help parties determine whether or not to bring their tort claim as apart of the divorce proceeding rather than as a separate claim.

• A divorce proceeding is heard by a Judge, whereas, a civil proceeding is tried to a jury. Oftentimes juries are more sympathetic to claims of assault than are Judges;

• Tort claims may complicate and prolong the divorce proceedings which oftentimes involve children;

• Certain awards for injuries suffered during the marriage may be discharged in bankruptcy if the issues are litigated outside of the divorce process. If the claims are brought as part of the divorce action, the injured spouse may receive a larger share of the marital property or spousal maintenance rather than a personal injury award. Property settlements and spousal maintenance awards are not likely to be discharged in bankruptcy proceedings;

• There may be statute of limitation problems if the claim is brought outside of the divorce proceeding. Divorce proceedings may be time consuming affairs. The applicable statute of limitation for torts is two years from the date of the incident or the discovery of the incident. This statutory period may be extended to four years if the claim involves relief under the Violence Against Women Act which is a federal civil rights claim.

-- Maury D. Beaulier, Esq. - Hellmuth & Johnson, PLLC