Recently in Tort Liability Involving Divorcing Spouses Category

March 15, 2011

Divorcing Party May Seek Damages For Tortious Conduct By Spouse

The abrogation of inter spousal immunity in Bozman vs. Bozman, has opened up a new set of issues for Maryland Divorce Lawyers and their clients. A party to a divorce, who is also the victim of tortious conduct, may be unable to obtain an adequate remedy under Maryland's laws governing the dispensation of justice in divorce proceedings. Such a party may consider seeking a remedy based on a civil cause of action. In such a dispute, either party would have the right to a trial by jury. A spouse who is the victim of a tort would seek both equitable relief within the context of laws regulating divorce and a judgment in a civil cause of action.

A prior posting discusses claims brought by a pro se lawyer that were soundly rebuffed in Lasater v. Guttman. This is not an invitation to the establishment of new causes of action peculiar to the institution of marriage. However, some well established torts need to be on the check list of Maryland Divorce Lawyers and their clients. Much but not all of the conduct under the definition of domestic violence would form the basis for a civil cause of action. A cause of action for negligent transmission of a sexually transmitted disease was recognized by the Maryland Court of Appeals in B.K. v. N.N.

As tort lawyers know, not every cause of action is worth pursuing. Maryland Divorce Lawyers and their clients will have to run a cost benefit analysis in such circumstances and keep an eye on the limitations period.

November 26, 2010

Confidential Relationship and Tort Liability Involving Divorcing Spouses

A prior posting, discussed a developing area of law for Maryland Divorce Lawyers resulting from the abolition of interspousal tort immunity in the 2003 opinion in Bozman vs. Bozman. In the 2010 opinion in Lasater vs. Guttman , various theories of tort liability (conversion, intentional infliction of emotional distress and fraud and breach of fiduciary duty) raised by wife were rejected on summary judgment and upheld on appeal. Perhaps the most instructive section of the opinion relates to wife's claim based upon husband's depletion of the parties' marital assets over decades while she occupied a position of trust and confidence in him.

The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship. Absent an agreement that actually establishes a fiduciary relationship, for example creation of a partnership, husband and wife will not have a fiduciary relationship. On the other hand, a confidential relationship may be proven to exist, although it is not presumed. The proponent of a confidential relationship must show that he or she was justified in assuming that the other spouse would not act in a manner inconsistent with his or her welfare. Among the factors to be considered are the age, mental condition, education, business experience, state of health and degree of dependence of the spouse in question.

A confidential relationship may be used as an entree to setting aside a particular transaction such as an oppressive separation agreement. However Lasater vs. Guttman makes it clear that it cannot be used to vindicate a history of financial wrongs occurring during the course of a marriage. Such wrong doing will not become an independent cause of action. It will remain only one of many factors subsumed into the equity courts decisions about marital property and spousal support.

November 20, 2010

Tort Liability Involving Divorcing Spouses

Maryland Divorce Lawyers have received some important guidance from a recent opinion issued by Maryland's Court of Special Appeals. The opinion in Lasater vs. Guttman denied wife's far reaching claims arising from a divorce ending a chaotic marriage between two high powered Montgomery County Lawyers. The court upheld the trial court's summary judgment on wife's claim for conversion, intentional infliction of emotional harm, fraud and breach of fiduciary duty.

The need for clarification follows the 2004 decision by the Court of Appeals abolishing the doctrine of interspousal immunity in Maryland in Bozman vs. Bozman. It is one thing to allow an individual injured in an auto accident to sue his or her spouse for negligent driving. It is quite another to litigate alleged economic impropriety occurring over decades.

The court's bottom line is that the marital relationship does not automatically give rise to any duties that are actionable in tort. Any such claims must be consistent with traditional tort law. Lasater vs. Guttman will be particularly helpful in analyzing possible claims based on a breach of fiduciary duty or confidential relationship. This is the topic of another posting.