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Civil Tort Actions Related to Divorce Actions

Beginning in 1977, the Texas Supreme Court abolished the doctrine of interspousal immunity with respect to intentional torts – i.e. when one spouse intentionally injures the other spouse. A decade later, after reviewing the history of interspousal immunity, the Texas Supreme Court abolished the doctrine in its entirety. Accordingly, one spouse can now sue the other spouse for any statutory or common law cause of action that could be brought against a person who is not a spouse. The list of permissible claims includes, but is not limited to: electronic eavesdropping (under both federal and state statutes), assault, conversion of separate property, breach of fiduciary duty, interference with possession of a child, fraud (statutory and common law), and even the tort of intentional infliction of emotional distress.

Courts look disfavorably on tort claims because they usually complicate an already messy divorce case. Accordingly, although tort claims are commonly pled in petitions/counterpetitions for divorce, they are rarely presented at trial. But, the factual basis for a tort claim can sometimes be used to justify an unequal distribution of the community estate.