What is a Marital Tort Claim in A New Jersey Divorce?

A tort is a wrongful act, accidental or intentional, that injures another person, though the injuries do not have to be physical. Torts are civil, not criminal, actions, meaning that even if a criminal action has been brought for this wrongful act, there is still a civil action available for monetary relief. Assault and battery would be an example of this. The person that committed the assault and battery may be charged and convicted, but you can also sue that person in tort for money damages resulting from your injuries, lost income, pain and suffering and much more.

In New Jersey, one spouse can sue the other for tortious actions in the same way they can sue a stranger for the same wrongful conduct. These types of torts that have happened during the marriage are called marital torts and can be included in a NJ divorce action. There are certain time frames within which you have to bring actions for torts which are called statutes of limitations. This is true with marital torts, too, but marital torts have other rules that can shorten the statute of limitations for bringing the action if it was not a marital tort.

The history and end of interspousal tort immunity for marital torts

For centuries, husband and wife were seen as one legal entity which created interspousal tort immunity, a legal fiction that spouses, being one “person” in law could not sue each other in tort. More interesting is that a primary factor supporting this was the desire to maintain marital or domestic harmony. It does not take a great legal mind to see that marital harmony has already been lost when a right to sue arises from the wrongful conduct of one spouse toward the other. After centuries, courts finally determined that a spouse is no less entitled to the relief for wrongful acts than a stranger would be.

This fiction of spousal immunity in marital tort actions was put to rest in the mid-1970's, making marital torts actionable by spouses. Various cases dealt with this issue through the following years, refining the changing landscape of spousal immunity. In 1979 the case of Tevis v. Tevis made it mandatory to join the marital tort actions and the divorce action as one. The combined marital tort/divorce actions are often called Tevis actions because of this case. This case is also why the statute of limitations may be much shorter than for a non-marital tort. Failing to bring the action for marital tort as part of your New Jersey divorce results in your losing the chance to ever bring the marital tort action.

By way of example, if you were assaulted and battered by your husband or wife the week before you file your NJ divorce action, you have to include the marital tort claim in your divorce action. The statute of limitations for bringing a civil action for assault and battery in New Jersey is 2 years, but you only have one week because of Tevis.

What actions are marital torts

Unfortunately, there are many marital torts, including but not limited to violent actions of assault and battery, marital rape, use of excessive force and the resulting Battered Women’s Syndrome. Less violent marital torts include intentional infliction of emotional distress, emotional abuse, economic abuse, defamation, wiretapping, dissipation of marital assets and false imprisonment.

An action for wrongful death is also a marital tort that can be brought by children or certain other relatives, when one spouse has caused the death of the other spouse by their wrongful acts. Again, a criminal action for the same behavior that caused the wrongful death does not stop you from bringing this claim for monetary relief.

If you need to discuss bringing a marital tort action as part of your NJ divorce, call the Law Offices of Peter Van Aulen for a free consultation at 201-845-7400.

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