Can You Sue Your Spouse During or After Divorce?

In California, the question of "Can I sue my spouse?" sometimes comes up during divorce or separation. Civil claims between spouses are allowed but there are also restrictions, especially during family law cases. That is why it is important to understand what claims are allowed and the limitations by California law.

These issues are complex, so please do not rely on what we write here regarding your specific situation. You will need the advice of an experienced family law and civil attorney to decide if the lawsuit in your case is proper.

Civil Lawsuits During Divorce or Legal Separation

When divorce or legal separation proceedings are ongoing, the family law court holds jurisdiction (meaning the power to decide) over issues related to the marriage.

This means civil lawsuits outside the family court are usually disfavored, as they can undermine the authority of the family law court.

Over the years, several cases have come down in our appellate courts on this issue.

Bidna v. Rosen

Bidna v. Rosen is a 1993 case. The case revolves around whether malicious prosecution claims should be allowed in family law proceedings, even where the defendant's conduct is egregious. After the husband was awarded primary custody of the couple's daughter, the wife's mother vowed to use her financial resources to repeatedly challenge the custody decision until the husband gave up. The wife filed six meritless applications in a year.

This cost the husband over $200,000 to defend them. The court had the dilemma of affirming the judgment, limiting the husband to family law remedies without him getting punitive or emotional distress damages, or reversing the judgment, which could lead to an increase in malicious prosecution claims in family law, and potentially discouraging meritorious filings. It was a tough choice. Ultimately, the court decided against allowing the malicious prosecution claims. The court said the proper remedy for excessive litigation needs to stay in the family law case.

Askew v. Askew

Askew v. Askew is a 1994 case where the husband sued his wife for fraud, alleging that before their marriage, she said she felt sexual attraction for him, which led him to marry her and place specific properties, which he claims as his separate property, into both of their names as joint tenants. Thirteen years into the marriage, with two children, the husband sued, claiming that she "never" felt sexual attraction and that this "fraud" should justify imposing a trust on her share of the jointly held property. That lawsuit was dismissed.

D'Elia v. D'Elia

D'Elia v. D'Elia is a 1997 case. Here, the court addresses the inappropriate expansion of family law disputes into other legal realms, specifically securities fraud. The case involves a spouse who, after making a bad deal in a marital settlement agreement without conducting an independent appraisal of a family business, sought damages under state securities fraud laws rather than setting aside the agreement in family court. The court found no previous published cases that allowed applying securities fraud to marital settlement agreements. The court also said that family law provides remedies for things like misrepresentation by allowing one spouse to ask for a set aside of agreements or imposing sanctions.

Neal v. Superior Court

Neal v. Superior Court was a 2001 case. A father who owed support filed a civil complaint against the mother and the collection agency, claiming he had satisfied the indebtedness when "certain oral modifications" were considered. The court was not impressed, and the lawsuit was dismissed.

Burkle v. Burkle

Burkle v. Burkle was a 2006 case. The court said that family law orders must be enforced within the family court, and civil actions do not serve that purpose.

Exceptions: Sometimes Civil Actions Between Spouses (or Ex-Spouses) are Proper

Not all disputes between spouses need to be handled in family court. California does not recognize interspousal immunity, meaning spouses can file civil lawsuits, such as tort or contract actions, against each other. Sometimes, one spouse may sue the other for tort or contract actions.

Boblitt v. Boblitt is a 2010 case and a good example. There, the court ruled that a wife was not barred from filing a tort action for domestic violence against her former husband, even though the family court had considered these acts during the divorce. This case shows that while the family court handles many parts of marital disputes, some civil claims can still be brought in separate court proceedings.

Also, consider other torts like defamation (libel or slander). If one spouse (or ex-spouse) makes defamatory statements about the other spouse outside of family court (meaning, not just in documents filed with the court or stated in the family law proceedings), why shouldn't the defamed spouse be able to sue?

For example, let's say there is a child custody dispute between two parents (and let's assume they are normal, private individuals), and one parent tells others outside of family court (friends, family, etc.) that the other parent molested their child, knowing that the statement was false. There, the defamed parent may have a cause of action against the other parent for the false allegations of child abuse. This is separate from the rights and remedies the California Family Code gives to someone who is knowingly and falsely accused of child abuse. But again, it is important to have legal advice before deciding to proceed to ensure you present your case properly.

Can You Sue After a Divorce Is Final?

Sometimes, spouses may still sue each other for specific claims, but the courts are still cautious about allowing such lawsuits.

For example, in the 2003 case of Nicolson v. Fazelli, after a trust was joined in a dissolution action and filed a cross-complaint against both spouses seeking possession of property or damages, the wife obtained attorney's fees and sanctions against the husband and the trust but was denied relief against the trustees.

After the cross-complaint was dismissed and an arbitrator ruled in the wife's favor regarding the property, she filed a malicious prosecution suit against the husband, trustees, and the trust's attorney.

The court dismissed her action. On appeal, the appellate court focused on two issues - (1) whether a cross-complaint in a divorce action can be the basis for malicious prosecution and (2) whether the family court's previous ruling prevented this claim. The appellate court found that the malicious prosecution claim was valid, reversing the dismissal.

No Heart Balm Lawsuits in California

California law does not recognize "heart balm" lawsuits which are lawsuits based on emotional harm. These lawsuits result from the end of a relationship, such as a breach of promise to marry or alienation of affection.

These lawsuits used to let people seek damages for broken engagements or loss of affection in a marriage. California abolished these cases. Specifically, California Civil Code §43.5 states:

"No cause of action arises for: (a) Alienation of affection. (b) Criminal conversation. (c) Seduction of a person over the age of legal consent. (d) Breach of promise of marriage."

This means you cannot sue your spouse or anyone else for emotional distress caused by the breakdown of your marriage or a broken engagement.

Does your Divorce or Family Law Case Involve a Lawsuit?

So, can you sue your spouse? And if you are the one who is sued, can you dismiss the case?

Consulting with an experienced family law attorney and a separate civil attorney is important to determine the best course of action for your specific situation. Our family law firm has experience with these actions, and we work with civil attorneys who can guide our clients through them.