Sometimes we represent clients that have more than just a divorce proceeding in mind when they seek to initiate a law suit in the county circuit court. Some cases lend themselves to establishing a collateral cause of action in tort or in fraud.
A tort is defined as a civil wrong or wrongful act, either intentional or accidental, from which a recognizable injury occurs. Examples of marital torts include physical assault, negligent infliction of emotional harm, and the alienation of parental affections of minor children.
In certain cases, the appellate courts have allowed separate cases to proceed from one spouse against another, or a former spouse against another, in the court of general jurisdiction. Thus, the action proceeds outside the family court like any other tort cause of action.
A related concept, although not technically considered a tort, is fraud. Courts in Michigan have recognized that, similar to a tort, a claim for fraud may exist as a separate cause of action distinct from the divorce proceeding in family court.
Where the alleged fraud, however, is so intimately wrapped-up in the facts and circumstances of the marriage, as where a spouse fraudulently induces a person to marry solely for immigration purposes, then the count must be pled in the divorce and prosecuted in the family court. On the other hand, where one spouse fraudulently conceals assets during a divorce, the Court of Appeals has ruled that a separate action for fraud exists and can be maintained in the court of general jurisdiction.
The most common form of tort is a separate law suit for assault [domestic violence]. Even under Michigan’s so-called “no-fault” divorce laws, family court judges can and do take fault into account; this is, however, not a guarantee.
Because of the reluctance of some judges to subjectively take fault [i.e. domestic violence] into account in the property settlement, some practitioners opt for: a) pleading the existence of domestic violence in the family court proceeding, and b) bringing a separate and distinct law suit for tort in the court of general jurisdiction.
Having a separate tort suit can do wonders for testing the true value of the case. It can be used in the property division negotiations of the divorce and lets the other spouse that you are serious about making them accountable for their transgression.
If you are faced with complicated issues like those referenced on this page, contact us for a free consultation to discuss your options.