Divorce FAQ's
1. What is a marital tort?
Basically, a tort is a civil wrong, for which the court will provide a remedy in the form of an action for damages. Torts may be intentional, negligent or reckless. They may result in any number of physical or emotion injuries and they also include injuries to property. Torts have increasingly become very relevant in New Jersey divorces. Many spouses now also sue their ex-husband for a marital tort(s), and it is then consolidated with the primary cause for the divorce.
In my opinion, a marital tort is basically a “shake down” tactic by a wife to obtain a distinct advantage in a divorce case. Examples of marital torts include: assault and battery; marital rape; Battered Woman’s syndrome; wrongful death, intentional infliction of emotional distress; false imprisonment; use of excessive force; defamation; and wiretapping.
Claims may also arise after the complaint for divorce has been filed. These types of claims frequently involve hiding money after a divorce case has started. These types of torts are called the dissipation of marital assets, fraudulent conveyance of marital assets, invasion of privacy, and interference with custodial rights.
In summary, filing marital torts is an emerging trend in New Jersey divorce law. The concept of inter-spousal immunity has been abolished in New Jersey. Therefore, the gates have been open to permit spouses to sue each other for individual torts. What a wonderful world we live in!
2. What is the Battered Woman’s Syndrome?
In some bitter divorce cases, a battered spouse will also sue their husband for a personal injury tort. The tort claim of being a battered spouse will be consolidated with the divorce case. A ruthless lawyer will use a battered spouse tort claim to try to obtain additional financial concessions in the divorce case.
The Battered Woman’s Syndrome was first recognized by the New Jersey Supreme Court in the case of State v. Kelly, 97 N.J. 178 (1984). By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights.
The trial court in the case of Cusseaux v. Picket, 279 Super. 335 (Law Div. 1994) established a four-part test to prove a cause of action for Battered Woman’s Syndrome:
- Involvement in a marital or marital like intimate relationship;
- Physical or psychological abuse perpetrated by the dominant partner to the relations over an extended period of time;
- The aforementioned abuse has caused recurring physical or psychological injury over the course of the relationship; and
- A past or present inability to take any action to improve or alter the situation unilaterally.
In order to prove a “Battered Spouse” tort claim a woman must also produce a psychological expert at trial. The psychiatrist must verify that the woman was battered, and that she suffers from psychological damages as a result of her abuse.
3. Can a spouse file a tort lawsuit for an assault and battery?
In many cases a spouse is actually physically injured by her husband or wife. Unfortunately, in many cases a husband actually physically hurts his wife by punching her. I have had a case wherein the husband actually fractured his wife’s skull. Moreover, there are other cases out there wherein a wife has stabbed her husband in the “heat of passion.” Acts of domestic violence frequently occur once a spouse is busted for cheating.
In these types of cases, once a violent assault and battery has occurred, divorce is the only option. If there is a permanent physical injury, then a spouse can also sue their husband or wife for the tort of assault and battery. If there are serious physical injuries, then the amount of damages that can be awarded can be quite substantial.
Battery is defined as a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent. Battery, stands in contrast with “assault,” a term that is ordinarily used to refer to apprehension of imminent contact rather than the contact itself. “Assault” is more fully defined as ones interest in freedom from the apprehension of a harmful or offensive contact with a person, as distinguished from the contact itself, and it is protected by an action for the tort known as assault. No actual contact is necessary, and the plaintiff is protected against a purely mental disturbance.
In the majority of cases, a spouse files a complaint for assault or battery with the local police department. If a wife calls the police to report an incident of domestic violence, then the police will often file a complaint for assault and battery. These case are mostly heard on the Municipal Court level. Moreover, a local municipal court judge will also issue a temporary restraining order. If a spouse commits an assault or battery, then it is not a good idea to permit him to stay in the marital home.
In most cases the assault and battery charges will be dropped, if the husband completes an anger management court. In many cases, the municipal court will adjourn the case for six months to permit the husband to complete an anger management course. The municipal court also wants to assess how the marriage is going, and if any additional acts of domestic violence have occurred. If the injuries caused from the assault and battery are serious and substantial, then the case will be sent up to the County Prosecutor to review for a possible indictment.
4. What can a spouse do if a husband or wife tries to dissipate and hide assets prior to or after the filing of divorce?
A very common problem in many cases is that after the complaint for divorce is filed, then one spouse attempts to dissipate and hide valuable marital assets. In such circumstances, if a spouse wrongfully transfers marital assets to a third party for no or insufficient consideration, then a cause of action may be filed against not only the spouse but also the third party based upon the fraudulent conveyance.
I have been frequently asked what is the difference between a legal separation and a divorce. My answer to this question is that a husband has more time to hide his assets if there is a legal separation rather than in a divorce filing. In many cases once a wife files for divorce, a husband will go berserk and panic by trying to hide his assets everywhere. Soon to be ex-husbands often have close family members hide their money and assets for them. Alternatively, a sneaky husband will also have his new girlfriend hide money or assets for them as well. In many cases, a tremendous amount of time must be spent on trying to uncover hidden assets concealed by a devious husband. If a husband still attempts to hide and conceal assets, even after a probing investigation, then a good lawyer should amend the divorce complaint. The husband should also be sued for a fraudulent conveyance cause of action. At the very least, the filing of this type of lawsuit will force the husband to testify under oath what happened to the concealed money and assets. In many cases, a court will award the wife the marital home if the husband persists in hiding and concealing marital assets.
5. Can a person record or tape a conversation of their spouse?
Pursuant to federal and state wire tapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can’t tape their spouse while they are talking to other people, and more specifically their paramour.
In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue as to whether a husband violated the wiretapping statute by taping his wife’s telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe. The court found that the secretive taping of a spouse’s telephone calls under those circumstances as an egregious invasion that warranted both compensation and punitive damages.
Therefore, although both New Jersey and Federal Wire Tap Laws permit the taping of a conversation to which an individual is a party, any other form of taping or recording of another persons’ conversation can be violation of criminal and civil wiretap laws.
6. What is the tort of the malicious abuse of process/malicious use of process?
In many cases, a bitter ex-wife files many frivolous criminal and domestic violence complaints against her husband. I have seen many cases wherein a bitter ex-wife sole concern is only to destroy their husband. In many cases, they do a great job! A husband can sue his ex-wife in an egregious case for a tort that is called the malicious abuse of process. This cause of action should only be considered in the most egregious set of facts because it is very difficult to prove. However, the filing of a complaint for abuse of process against a raging ex-wife could slow her down, and make her think twice against filing any more frivolous criminal or domestic violence complaints.