A tort is a civil wrong done by one party against another — whether intentional or unintentional, and whether or not the parties are married — that results in physical or emotional injury or both to the victim. In a divorce case, in addition to the usual list of controverted items (child custody and parenting time; child support; alimony; equitable distribution of jointly acquired marital assets and debts; and who pays for what counsel fees/costs), a partner can also bring a marital tort action against the other right in the divorce court, including full discovery, and seek money damages against that spouse, just as they could have done if the injuring party were a stranger. Filing of marital tort claims is on the rise in New Jersey.

Divorce attorneys trace this trend’s origins to the 1979 New Jersey Supreme Court decision in Tevis v. Tevis, in which a wife brought a claim of assault and battery against her husband prior to their divorce. In the decision, the wife was awarded damages, and the floodgates opened. Over the following years most states, including New Jersey, repealed spousal immunity laws that prevented such claims by one spouse against another and restricted testimony by one spouse against the other. Those restrictions are over in New Jersey, legally speaking.

In today’s New Jersey divorce court, many spouses bring tort claims as part of their divorce cases. Marital tort claims include:

• Defamation
• Wiretapping
• Assault and battery
• Rape or other sexually assaultive behavior
• False imprisonment
• Emotional harm
• Invasion of privacy
• Economic abuse
• Infection with a sexually transmitted disease
• Dissipation of marital assets

Marital tort law is based on the idea that both partners have the right to avoid certain conditions that society deems unreasonable and outside the norm. Neither party is required to tolerate the advent of those conditions. An example of this is marital assault and battery. Assault is the fear of attack. Battery is the actual act of physical harm. To file a claim for marital assault and battery, the plaintiff must prove physical harm.

In some cases, marital torts are filed to ramp up one spouse’s case for financial gain or custody. This is never o.k. If there is no proof of actual harm, the tort claims will be thrown out. If there is proof of harm, and particularly in cases of continuing emotional harm, the tort case can enhance the remedies granted by the trial judge.

Importantly, if a party is considering filing a marital tort claim, s/he should be aware that New Jersey law requires every party to file every claim against every other party to the action – or suffer dismissal of a later-brought claim that could and should have been filed earlier. This rule, The Entire Controversy Doctrine, acts as its own statute of limitations in our jurisdiction. Either “file it or lose it” is the prevailing sentiment of our State’s legislative and court-based powers that be.

Over the years, this office has successfully moved to dismiss post-judgment legal claims filed against our divorce clients, on the grounds that the actions should have been filed as part of the divorce action, but were not.

A divorce that is complicated by physical or economic violence can be extremely stressful. If you face this ordeal, you should hire a team of divorce attorneys who are compassionate counsel and tough advocates for you. Call the law offices of Hanan M. Isaacs, P.C., for a near-term reduced fee initial consultation in our Central Jersey law offices in Kingston. Call 609-683-7400 or contact us online today. We will listen to your facts, explain the law, and suggest legal and practical solutions that are just and reasonable for you. We will provide you with a road-map to civil and economic justice. Call now. You will be glad you did.