§ 13.03 Miscellaneous Equitable Distribution Issues

JurisdictionUnited States
Publication year2021

§ 13.03 Miscellaneous Equitable Distribution Issues

[1]—Needs That Are Unrelated to the Marriage

A question arises whether a need unrelated to the marital partnership should affect the financial settlement at divorce. For example, if a spouse is ill and has significant medical expenses, should this be considered? Similarly, if two older people divorce after a short marriage, and their financial circumstances are quite different at divorce, should the divorce court try to equalize their situation? It is unclear why one spouse should have a duty to compensate the other for needs and problems unrelated to the marital partnership.380 Still, many courts consider factors such as health of the parties when the divorce financial settlement is made.

This "private welfare" characteristic of divorce property-division is inconsistent with the marital partnership concept, particularly when it is applied to childless marriages of short duration. Marriage is no longer perceived as necessarily a lifetime commitment giving rise to a lifetime duty of support.381 It is a commitment of indefinite duration that either spouse be divided according to the spouses' respective financial contributions, while also considering any career damage incurred by either spouse as a result of the assumption of child care responsibilities. One spouse should not have the continuing duty to satisfy needs of the other spouse that are unrelated to the marriage.

[2]—Independent Claims in the Divorce Action

Certain independent claims can be joined with an equitable distribution suit. A number of states have abolished interspousal tort immunity382 so a spouse in these states may assert a tort claim against the other spouse, even if the tort claim arose during marriage. The most common tort claim has been assault or battery,383 but spouses have also claimed defamation,384 conversion,385 intentional infliction of mental distress,386 fraud,387 interference with contractual relationships,388 a claim under RICO,389 alienation of affection,390 negligent and fraudulent transmission of genital herpes,391 and taping telephone conversations.392

Other more creative attempts to expand potential tort grounds have been less successful. Courts have reached different conclusions, for example, about whether knowingly participating in a bigamous marriage is a tort.393 If a husband refuses his wife a religious divorce unless she accepts a proposed financial settlement, this was not considered a tort.394 A North Carolina court has refused to recognize the tort of intentional marital destruction.395

A Minnesota court has held that a husband could sue his wife in tort during divorce if she had misrepresented the paternity of children born during marriage.396 One former spouse has been permitted to sue the other in tort after divorce for concealment of marital assets.397

Third parties might also be tort defendants. In a Kentucky case, the court held that, if a minister from whom the couple had sought marriage counseling later engaged in an affair with the wife, this could constitute intentional infliction of emotional distress.398 If a minister reveals to others confidences shared by a parishioner in a counseling session, this could be the basis of a tort claim.399

Most states have abolished interspousal tort immunity fairly recently. Now that a spouse can assert a tort claim against the other spouse, courts have begun to establish appropriate procedural rules to govern litigation of such claims between divorcing spouses. Spousal tort claims present thorny policy questions. For example, if a spouse can bring a tort claim after divorce, this could substantially change the economic settlement crafted by the divorce judge. Also, the judge may have attempted to compensate the injured spouse in the divorce itself via an alimony award or property division. However, courts have noted that a plaintiff in a tort case has a right to a jury trial, something not possible under the divorce laws of most states.400 Also, the joinder of tort claims and divorce might introduce an undesirable focus on fault in the divorce proceedings.401 Some divorce courts have encouraged spouses to disclose the existence of any such potential claims if the claim is still pending at the time of divorce.402 This should reduce the likelihood of a double recovery for the injured spouse, and would allow the divorce court to consider the potential fruits of the pending tort action when dividing the marital estate and considering an award of spousal support. The tort claim can be joined with the divorce action in some states,403 while other states discourage joinder of claims.404 In some states, the court given the power to adjudicate divorces does not have the power to resolve tort claims; in these states, a tort action could not be joined with the divorce action.405 A few courts that permit spousal tort claims require that they be asserted in the divorce action.406 Almost all courts that recognize interspousal tort claims permit a later, separate tort action between the spouses as long as the statute of limitations has not expired,407 the divorce decree did not already ready grant damages for the tort, and the parties did not sign a general release encompassing the right to assert such a claim.408 Of course, the divorce decree might partially compensate the injured spouse (continuing medical expenses, for example, might be compensated via alimony). In an attempt to avoid double recovery, one court has therefore remanded the divorce case so that the divorce judge could clarify to the judge hearing the tort case the extent to which the divorce decree was affected by the act constituting the tort and any continuing needs resulting from it.409

If spouses have signed an enforceable marriage contract, a spouse could attempt to enforce a provision of the contract in connection with the divorce action. Unusual provisions might not be enforced. For example, in a New Mexico case the wife claimed that the husband breached his promise to be sexually faithful.410 The court did not consider this an enforceable provision.

It is unclear whether other claims can be made at divorce. For example, it has been argued that, in some circumstances, a spouse should have a quasi-contractual remedy in addition to the spouses' rights under equitable distribution rules.411 Most courts do not permit a spouse to make such equitable claims in connection with a divorce. However, claims regarding a period of pre-marriage cohabitation have been upheld.412

Some spouses have added other creative claims to the divorce petition or have initiated separate actions post-divorce. In one case, for example, a spouse claimed that the property settlement violated federal securities laws.413 A claim under the Uniform Partnership Act is also possible if the spouses were involved together in a partnership business.414

[3]—Retroactivity of Equitable Distribution Statutes

Many common law states adopted equitable distribution statutes in the 1970's and 1980's. The retroactive effect of these statutes has been litigated and found not to affect decrees that were final before the effective date of the equitable distribution law.415 However, the laws do govern property acquired before the date of the law, if the divorce action was filed after the law was enacted.416 If the divorce proceeding was filed before the effective date of the statute, but did not become final before the effective date of the statute, the result is less clear.417

The retroactive application of some equitable distribution statutes has been challenged on due process grounds. In common law states, the challenge has never been accepted.418 With the exception of an effect on presumptions arising from joint title, which may raise a constitutional problem,419 adoption of equitable distribution normally does not immediately affect a spouse's property rights. Instead, property rights are affected only if a divorce action is filed after the statute was enacted. However, if the statute affects the rights of third parties, it may create a constitutional problem.420 Retroactive application of changes in characterization rules have also been upheld in common law states.421

Amendments to community property rules are more susceptible to constitutional challenge if they are retroactive, since such amendments immediately change the parties' property rights.422 For example, according to prior California law, a husband's wages earned after the parties separated were community property. The wife's wages during the same period, however, were her separate property. The statute was amended to provide that the earnings of both spouses during separation were the separate property of the wage earner.423 This amendment was applied retroactively, which had the effect of erasing a wife's community property interest in the husband's earnings received after separation but before the law was enacted. When a wife challenged the constitutionality of the retroactive application, the California Supreme Court acknowledged that there was a "taking" of the wife's property, but approved retroactive application in view of the unfairness of the prior rule.424


Most equitable distribution statutes provide that divorce courts are to divide the spouses' "marital property,"425 without mentioning how debts are to be treated. Still, debts cannot be ignored if a court wishes to fashion a sensible financial settlement. Indeed, ignoring debts would undermine the concept of marital property. Under marital property theory, only the fruits of the marital partnership are considered divisible. For example, if spouses buy a house for $100,000 by making a $5,000 down payment with marital property and borrowing $95,000, in reality only $5,000 of marital property exists. Similarly, if the spouses during the last year of marriage earned $50,000 in wages, but a $15,000 tax liability is due on the wages at the end of the year, in reality...

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