New York -- Divorce and Tort Cases Between Spouses

Posted by Jeremy Morley | Dec 28, 2005 | 0 Comments

A New York court has held that a husband and wife are free to sue each for personal injuries for tort in a separate action than an action for divorce. Chen v. Fischer --- N.Y.3d. ---, --- N.Y.S.2d --- (2005 WL 3452221) (2005 N.Y. Slip Op. 09572)(Dec 15, 2005).

The New York Court of Appeals ruled that such actions are best not tried together, since they seek different types of relief and require different types of proof.

The Court said that "Parties are free, of course, to join their interspousal tort claims with the matrimonial action (see CPLR 601[a] ) and the trial court retains discretion to sever the claims in the interest of convenience, if necessary (see CPLR 603). If a separate interspousal tort action is contemplated, however, or has been commenced, the better practice would be to include a reservation of rights in the judgment of divorce. Finally, if fault allegations are actually litigated in a matrimonial action, res judicata or some form of issue preclusion would bar a subsequent action in tort based on the same allegations."

New York's decision follows similar rulings in other states, including Connecticut (Delahunty v. Mass. Mut. Life Ins. Co., 236 Conn 582, 590-594, 674 A2d 1290, 1295-1297 [1996]); Maine (Henriksen v. Cameron, 622 A2d 1135, 1141-1142 [Me 1993]); and Massachusetts (Heacock v. Heacock, 402 Mass 21, 23-24, 520 NE2d 151, 153 [1988]).

By contrast, New Jersey's "single controversy" rule requires that an interspousal personal injury claim be brought with the matrimonial action so that the issues between the parties can be decided in one proceeding in order to prevent protracted litigation. Tevis v. Tevis (79 N.J. 422, 400 A.2d 1189 [1979]); but see Brennan v. Orban, 145 NJ 282, 303, 678 A2d 667, 678 [1996] in which the New Jersey Supreme Court acknowledged that litigating an interspousal tort claim prior to the divorce proceeding "may have a negative psychological impact on parties by prolonging the uncertainty of their marital status."

About the Author

Jeremy Morley

Jeremy D. Morley was admitted to the New York Bar in 1975 and concentrates on international family law. His firm works with clients around the world from its New York office, with a global network of local counsel. Mr. Morley is the author of "International Family Law Practice,...


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