Marital Torts

• Publication year: 2001
• Pages: 49

30 Colo.Law. 1 Colorado Lawyer 2001.

2001, January, Pg. 49. Marital Torts

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49

Vol. 30, No. 1, Pg. 1

The Colorado Lawyer
January 2001
Vol. 30, No. 1 [Page 49]

Specialty Law Columns
Family Law Newsletter
Marital Torts
by Paul R. Dunkelman, Judith J. Carlson

Can one spouse sue the other spouse for a tort that occurred during the marriage? Is it malpractice to fail to advise a divorce client who has been assaulted or otherwise wronged by a spouse of a potential cause of action? Considering the hostile nature of many divorces, these are questions the divorce practitioner should consider when drafting a separation agreement or preparing for court. Failure to do so may leave the client exposed to a later suit based on a marital tort. Conversely, without proper consideration, an attorney may unintentionally waive the client's right to seek relief based on a marital tort. This article looks at the historical development of the marital tort and the present state of Colorado law

Historical Background

Under the common law of England, the legal existence of the wife merged into that of her husband. Based on this merger, a legal fiction created by common law, husband and wife were regarded as one person?that person being the husband.1 "The husband hath, by law, power and dominion over his wife, and may keep her by force within the bounds of duty and may beat her, but not in a violent or cruel manner."2

As a result of this unity, the marital tort did not exist The wife could not sue a third party in her own name; the husband had to join in the suit. Clearly, no purpose would exist for a husband to join his wife in an action against himself. Just as clearly, a husband could not sue his wife because he would be suing himself. Thus, until this common law fiction of merging husband and wife into one person was changed, a marital tort could not exist.

This common law fiction began to break down in Colorado after the Wells v. Caywood decision in 1877, in which the court stated, "The wife in Colorado is the wife under our statutes, and not the wife at common law, and by our statutes must her rights be determined."3 The 1917 decision of Whyman v. Johnston took the next step by stating that the common law fiction of one legal person, composed of husband and wife, no longer existed.4 Consequently, husband and wife became separate legal entities.

The final step necessary in ending this common law fiction was when one spouse was legally able to sue the other spouse. In the 1935 case of Rains v. Rains, the wife was allowed to sue her husband for injuries sustained in an automobile accident caused by his negligence.5 The trial court entered judgment in favor of the wife, and the husband appealed. The Colorado Supreme Court stated:

As the nonliability of the husband to the wife was founded upon the common law fiction that the husband and wife were one, it would seem to follow that where that fiction is abolished, the nonliability does not survive. When the foundation is removed, the superstructure falls.6

Thus, the marital tort was born in Colorado.

Modern Approach

While the ability to sue a spouse was specifically permitted by Rains, a number of other issues remain unclear. For the practitioner, perhaps the most important question is in which arena it is proper to bring a marital tort action: an independent civil action or within the divorce proceeding Clearly, conduct that may result in a civil action for a marital tort also may be grounds for criminal charges. However, because criminal charges are brought by the state of Colorado and not the spouse, the concerns raised in this article are not relevant to criminal charges.7 For spouses interested in pursuing a marital tort, the question the courts have attempted to resolve is whether the claim should be brought...