What is a Tortious Act in Divorce

A tortious act refers to wrongful conduct that causes harm to another person. During the stressful divorce process, tensions can run high and lead one or both spouses to engage in tortious behaviors. These actions can significantly impact the divorce proceedings in terms of finances, child custody, and the ability to negotiate effectively.

Definition of a Tortious Act

A tort is a wrongful act that injures or causes damage to another person. Tort law encompasses civil wrongs for which the court provides a remedy, usually in the form of monetary compensation. The spouse who carries out the tortious act can be held legally responsible.

Some examples of tortious acts are:

  • Fraud: Intentionally providing false or misleading information to the other spouse regarding finances, assets, debts, etc.
  • False imprisonment: Restricting the physical freedom of movement of the other spouse without consent. This could involve locking them in a room or threatening harm if they try to leave.
  • Assault and battery: Threatening bodily harm coupled with offensive physical contact like hitting, shoving, or kicking.
  • Intentional infliction of emotional distress: Engaging in extreme or outrageous conduct that deliberately causes severe mental suffering and anguish.
  • Defamation: Making knowingly false and derogatory statements about the other spouse that damage their reputation.
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How Tortious Acts Can Impact Divorce

If one spouse commits a tortious act against the other during divorce, it can significantly affect various aspects of the proceedings.

Financial Implications

Fraud regarding finances and hiding of assets can leave the other spouse without their fair share of money and property. The victimized spouse may need to spend substantial time and money investigating fraud and locating hidden assets. It can delay finalization of divorce and lead to drawn-out litigation.

Child Custody Disputes

Tortious misconduct can demonstrate that the spouse is unfit to obtain full or joint custody rights. Emotional, verbal, physical, and sexual abuse of any kind can show the spouse lacks capability to co-parent. The victimized parent can use documentation of abuse to petition for restricted access or supervised visitation.

Negotiation and Mediation Difficulties

Productive negotiations require honesty, respect, and good faith from both parties. When one spouse commits torts like fraud, defamation, or intentional infliction of emotional distress, it erodes trust. This can make it challenging for spouses to communicate effectively or reach compromises on issues like alimony and property division. Mediation also becomes difficult.

Legal Options and Recourse

If you are the victim of a tortious act during divorce, you have several options:

Filing a Civil Lawsuit

You can file a separate civil lawsuit against your spouse seeking compensation for injuries or damages resulting from tortious misconduct like assault, battery, or defamation. This lawsuit can proceed independently from the divorce case.

Seeking a Restraining Order

Courts can issue temporary restraining orders or stay-away injunctions ordering the abusive spouse not to contact, harass, or physically approach the other spouse. Violating these orders constitutes contempt of court.

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Calling the Police

Acts like battery, assault, false imprisonment, or sexual assault are also criminal offenses. You can contact police to file criminal charges against the spouse in addition to pursuing civil remedies. This can strengthen your case for obtaining restrictive divorce judgments.

Informing Your Divorce Lawyer

Make sure to document all instances of tortious acts, preserving evidence like photographs of injuries, threatening correspondences, recordings of abusive phone calls, etc. Share this with your divorce lawyer who can use it to argue for favorable rulings in areas like asset division and child custody rights.

Preventing Tortious Acts During Divorce

While tensions run high, spouses should take proactive steps to prevent situations that could lead to tortious acts:

Maintain Communication

Keeping conversations open and expressing feelings productively can avoid miscommunications and arguments that spark tortious behaviors. Set weekly meetings to discuss issues non-confrontationally.

Seek Counseling or Therapy

Anger management counseling and individual or couples therapy with a licensed mental health professional can provide healthy outlets for frustrations. It teaches techniques to resolve issues calmly.

Create Physical Separation

Consider one spouse moving out of the shared residence during divorce. Reducing face-to-face contact limits opportunities for emotional issues to escalate into tortious acts.

Have Neutral Third Parties Present

When spousal discussions are necessary, have a mediator, therapist, religious leader, or attorney present. This can inhibit confrontational behaviors and provide accountability.


Tortious acts like assault, fraud, or defamation during divorce can have devastating legal and personal consequences. Family courts look unfavorably upon spouses who engage in misconduct. Tortious actions also erode the trust and cooperation necessary for productive negotiations. Taking preventative measures is key. If you become the victim of torts, understand your options for legal recourse and protecting yourself and children.

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Q: What if my spouse’s emotional abuse during divorce caused me severe depression?

A: You may have grounds to sue your spouse for intentional infliction of emotional distress to recover damages for costs of therapy and medication.

Q: Can I sue my spouse for fraud even after our divorce decree is issued?

A: Yes, you can file a tort lawsuit for fraud within 1-6 years in most states, depending on statutes of limitation. This is separate from divorce proceedings.

Q: What if I feel unsafe around my physically abusive spouse during our divorce?

A: Get a restraining order immediately and ask the court to only allow supervised visitation with children. Have an officer escort your spouse to retrieve belongings.

Q: My spouse lied during his deposition. Is that defamation?

A: No, statements made in court proceedings are protected by absolute privilege and cannot constitute defamation, even if knowingly false.

Q: Can emotional distress from abuse impact child custody rulings?

A: Yes. If one parent’s intentional infliction of distress makes the child’s other parent unable to provide proper care, custody can be impacted.

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