Can You Take Your Spouse to Court if You Are Still Married?

By Tom Streissguth

Disputes in a marriage can lead to divorce court or, by individual state laws, to another kind of civil court. States allow civil actions by one spouse against another under limited circumstances, and appeals courts have upheld this right even when a divorce action is ongoing. If the claim is alienation of affection, irreconcilable differences or other strictly marital issues, however, state laws direct the litigants to divorce court.

Intentional Injury and Car Accidents

A number of states, including New York, allow a married person to sue his spouse for intentional injuries. New York law also has a provision that requires auto insurance companies to offer optional coverage, known as Supplemental Spousal Liability Insurance. This would allow one spouse to sue the other spouse for injuries caused by a car accident, in which the other spouse was at fault.

Domestic Abuse Claims

Victims of domestic abuse may also sue for damages, including pain and suffering, lost wages and medical treatment -- whether or not a divorce action is proceeding at the same time. In 2010, a California appeals court allowed a wife to collect damages from a husband concurrently with spousal support ordered by a family law court during the couple's divorce. The ruling means that a final judgment in a divorce case does not prevent a civil action by one spouse against another, arising from actions that took place during the marriage.

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Pre-Divorce Fraud

In a similar case in Minnesota, an ex-husband sued his ex-wife for fraud, for telling him that he was the biological father of the couple's children when in fact he was not. Although the basis for the claim arose during the marriage and the divorce case was complete, an appeals court upheld the ex-husband's claim, pointing out that the issue had not been discussed or litigated during the divorce. The court also noted that bringing civil "tort" actions during a divorce case would mean additional witnesses, evidence and possibly a jury trial, greatly lengthening and complicating the process of divorce.

Suing for an STD

Sexually transmitted diseases also may arise as grounds for litigation between spouses. In Tennessee, Louisiana, Alabama, Minnesota and other states, a spouse or ex-spouse can sue for damages in the case of an STD transmitted during the marriage. In some states, the infected spouse must prove that the transmission was a deliberate act; other states only need a plaintiff to prove negligence: an inadequate attention to one's state of health. In one prominent Tennessee case, a court awarded a wife $288,000 in damages based on the cost of medication and doctor visits over her expected lifetime.

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Can a Third Party in Virginia Be Held in a Divorce Case in an Extramarital Affair?


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