Interspousal Immunity - Alive and Well?

Can a spouse join tort claims with a dissolution of marriage action?  California says, “Yes.”  See In re Marriage of McNeill III, 160 Cal. App. 3d 548, 206 Cal. Rptr. 641 (1984).  So does Texas.  See Massey v. Massey, 807 S.W.2d 391, 397 (Texas 1991).  Washington State officially abolished interspousal tort immunity and doesn’t prohibit joinder. Revised Code of Washington 26.16.150; Washington State Civil Rule 18(a).  But as a practical matter, how difficult is it for a party to recover in tort against his/her spouse in the context of dissolution of marriage proceedings? 

I recently joined a fraud claim with a dissolution of marriage action in Washington State.  This was not an evasive spouse trying to hide assets.  This case epitomized the tort.

A con man calling himself a financial planner met my client and lavishly wooed her with money he’d conned out of other people. They married, she turned her finances over to her “expert” husband, and in four years, he plowed through a goodly percentage of her separate property.  He didn’t stop there.  This man, who earned about $20,000 per year selling insurance, also leveraged the couple into ownership of three homes, $1.2 million in mortgages, and $125,000 of consumer debt.

After I broke the news to my client that not only was her husband not well-off, she wasn’t anymore either, I joined a claim of fraud with the dissolution of marriage action.  The response from opposing counsel?  An annoying for me, but not ignorable mantra, “This is a no-fault state.” See RCW 26.09.080.

At the end of trial, the court found that the husband’s tax returns didn’t match his second set of tax returns that didn’t match his loan applications that didn’t match his bank statements.  The court found that the man was clearly fraudulent with third parties and that his entire testimony to the court was a series of half truths and lies.  And then the court concluded, “That the Husband was not what the Wife thought he was is an element in the demise of most marriages and does not constitute fraud.” 

I’m not grousing about the result in the case.  The court ultimately did what it could for my client (husband’s property sold to pay off the debt and my client awarded her separate property).  But I still wonder about the factors that went into the court's conclusion that conduct constituting fraud on third parties was not fraudulent as between husband and wife.

A person’s logic and clarity are at their lowest ebb at the time he/she falls in love and marries.  It is the intimate nature of the marital relationship that forms the basis of the law's rule that a spouse owes the highest duty of care to the other.  Washington State courts characterize the relationship as fiduciary or confidential in nature.  See In re Marriage of Matson, 107 Wn.2d 479, 484, 730 P.2d 338 (1986).  Within a marriage, a spouse is more susceptible to potential fraud and other torts, not less so.

Maybe the result would have been different had the actions been tried separately (not possible in this case for economic reasons).  Maybe a jury would have seen it differently.  Or, as a practical matter, maybe “no-fault” divorce serves as the free pass that allows spouses to commit torts upon each other with impunity. 

                                                                                                 -- Leslie Olson