Wrongs Committed During a Marriage: TheChild that No Area of the Law Wantsto Adoptt

There is no winning! Only degrees of losing!Danny DeVito as Gavin D'Amato1I. IntroductionAlthough divorce rates have declined in recent decades, it is estimated that 40% of marriages in the United States end in divorce.2 A related social concern affecting American families is the high "prevalence of domestic violence among intimate partners."3 Studies on domestic violence reveal that between 8% and 1 2% of women are victims of domestic abuse and that "women who are separated or divorced are far more likely to have experienced domestic violence."4 As a result, claims of domestic abuse and marital misconduct appear in a number of divorce cases.In the past, evidence of tortious conduct was an integral part of a divorce proceeding because it formed the basis upon which a divorce was granted and influenced the distribution of assets and determination of support awards.5 Interestingly enough, it has been suggested that much of early divorce law was an outgrowth of tort law concepts.6 The widespread shift to no-fault divorce meant that many spouses seeking redress for wrongs that occurred during the marriage had to turn elsewhere7 - the law of torts. Transferring claims of marital misconduct from divorce proceedings into tort suits has not been without its problems. Courts and legislatures have struggled to decide "whether ... a particular grievance should be handled within the context of the family law system, rather than bringing a separate tort claim."8This Note examines whether family law or tort law should be primarily responsible for compensating the victim of marital misconduct. More specifically, who loses under a regime that compensates for harms during the marriage in tort rather than divorce? Part II of this Note elaborates on the consequences of considering tortious conduct in a separate lawsuit rather than in conjunction with the divorce through illustrative cases employing the two alternatives.9 These cases also demonstrate how tort principles are modified on the basis of the parties' marital status.10Part III of this Note provides a brief background of the relevant developments in divorce and interspousal torts. The major development in twentieth-century divorce law was the shift from the traditional fault-based systems to the no-fault systems that currently predominate in the United States.11 The eradication of the doctrine of interspousal tort immunity, which prevented spouses from suing each other until the mid- 1900s, introduced the opportunity to redress injuries inflicted during marriage through tort law.12The American Law Institute recommends that divorce proceedings remain free of any consideration of fault, leaving the parties to resort to the law of torts.13 However, the intersection of independent interspousal tort claims and no-fault divorce proceedings generates a multitude of obstacles for the individual parties and the courts, an issue discussed in Part IV of this Note.14 Many of these problems are procedural - concerning the applicable statute of limitations, joinder, and res judicata.15 Financial limitations raise additional obstacles, particularly when the tortfeasor is not as economically stable as the injured party.16Part V evaluates the American Law Institute's recommendation by exploring the adequacy of current tort law to compensate victims of marital misconduct. This Part examines how successfully tort law provides relief for three of the most common marital wrongs - assault and battery, intentional infliction of emotional distress, and adultery.17 This Note then considers the realities of civil litigation to assess whether filing multiple suits is a viable option.18A number of alternatives that may compensate victims more adequately than the proposal offered by the American Law Institute are recommended in Part VI. These alternatives include reforming divorce law to provide for limited consideration of fault or reforming tort law to address harms that are unique to the marital relationship. …