Except when explicitly reserved, most inter-spousal claims do not survive a divorce or final order of separate maintenance. If one spouse owes the other money or has some property that the belongs to the other, the possession of that property or the payment on that debt needs to be addressed in the final order. If it isn’t addressed as part of the order the property does not need to be returned and the debt does not need to be repaid.
However there are some claims that not only survive these final orders but are ones the family court cannot address except as part of the process of approving an agreement reached by the parties. Almost always these are torts or claims that resemble torts.
In my experience such claims fall into one of three categories. The first are violations of federally created privacy rights in electronic communications. Violations of the Stored Wire and Electronic Communications and Transactional Records Access Act, 18 U.S.C. § 2701, et seq., create civil liability under 18 U.S.C. § 2707. Violations of the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. § 2501, et seq., also create civil liability. 18 U.S.C. § 2520. Basically one spouse surreptitiously intercepting the other spouse’s phone calls or hacking into the other spouse’s email or social networking sites gives rise to liabilities that the family court cannot address.
Any spouse who obtains a divorce on the ground of physical cruelty has a potential claim for the intentional tort of assault and battery. The battering spouse’s fault in the breakup of the marriage is a factor in the family court’s division of property and in any alimony award but this does not prevent the battered spouse from bringing a personal injury claim (assuming the statute of limitations has not run).
Finally when one spouse’s infidelities have caused the other spouse to contract a venereal disease, this can give rise to a cause of action for negligence or battery. While there are no reported South Carolina cases on this cause of action, other states have appellate decisions recognizing this tort. See e.g., Meany v. Meany, 639 So.2d 229 (La. 1994). The family court can consider a spouse’s anticipated medical bills for treatment from a venereal disease in setting alimony or awarding equitable distribution. However, this does not prevent the spouse from bringing a separate tort action. Unless the family court order specifically addresses what alimony or property division is being set aside for the spouse’s medical treatment, a strong potential for a double recovery exists. Even if the family court order addresses these medical expenses, the injured spouse is still entitled to recover for personal injury damages beyond the medical treatment.
When representing a spouse with a potential tort claim in marital dissolution litigation there is a strategic consideration on whether to file the tort action while the marital litigation is pending or whether to wait until the case is over to file. If the statute of limitations will run before the family court litigation is completed one cannot wait. Sometimes the filing of such a tort action can provide leverage on issues such as alimony, property division and child custody. However, if one can resolve the marital litigation on favorable terms without revealing one’s intent to proceed with a tort claim once the case is over it can be advantageous to obtain a great settlement or result because of the other spouse’s misbehavior and then obtain even more funds with a subsequent lawsuit.
When representing a spouse who is a potential defendant from a inter-spousal tort claim, one should try to obtain a complete release of all claims as part of any settlement. While the family court cannot grant such a release absent both parties’ agreement, seeking and obtaining such a release as part of a generous offer on alimony or property division protects one’s client from the other spouse later attempting “a second bite at the apple.”