Joinder of Tort Claims in Divorce Actions

Abstract:     
Laws governing relations between spouses have undergone profound changes that continue to revolutionize the standards and procedures for dissolutions of marriage. The most dramatic changes in divorce law have come from the advent of no-fault divorce, the decline in spousal maintenance awards, and the abolition of inter-spousal tort immunity. Ongoing changes include movements to integrate family courts as a separate judicial system and to incorporate alternative dispute resolution into that system.

These transformations have been based in part on changes in how society views divorce and, on the way the legal system views the family. As a result, more couples can divorce quickly, inexpensively, and with a minimum of rancor. Despite these dramatic changes, however, a number of divorces still occur the old fashioned way - with an extended, adversarial fight over fault and financial distribution. One question facing the legal system in this climate is the extent to which divorce should be the last battle - bloody, wide-ranging, but final - or simply the first step in an ongoing war. An important issue in resolving this question is the extent to which a spouse may or must join in a divorce action any tort claims he or she may have against the other spouse.

Rather than viewing interspousal torts claimants as economic game players, this article notes that the vast majority of tort claimants are abused spouses and assumes that these claimants are making their litigation choices during divorce as emotional, even irrational, actors. This assumption requires different responses when deciding whether tort claims must or may be joined with divorce actions.

This article addresses that policy question by surveying the current state of the law regarding the effects of claim preclusion (res judicata) in a divorce proceeding. Some history of the role of fault in judicial resolution of spousal disputes is examined. The three major approaches to joinder of tort claims are identified and critiqued. This article posits that, on a policy basis, family court judges should have the discretion to allow, but not to require, joinder of tort claims in divorce proceedings. This responds to the needs of the litigants may be emotionally unable or unwilling to bring tort actions during the tumultuous and dangerous time of divorce. For those litigants who do wish to resolve all issues at once, however, this approach allows for that efficiency.

Keywords: Divorce, Dissolution of marriage, Fault, No-fault, Claim preclusion, Res judicata, Marital asset, Interspousal litigation, Interspousal tort immunity, Joinder, Tort action

JEL Classifications: J12, J16, J18, K10, K13, K40, K41

Accepted Paper Series