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Divorce, Interspousal Torts, And Res Judicata, Andrew Schepard

Hofstra Law Faculty Scholarship

Some fear that requiring litigation of interspousal torts in a divorce action may undermine the policy premises of no-fault divorce. Fear of res judicata may encourage divorce litigants to scrape the "bottom of the barrel" and assert every conceivable tort claim that arose during the marriage. Divorce litigation will thus become more bitter and hostile than it already is. Others fear that divorce litigation will become unmanageable as tort claims and third parties are added to joined tort/divorce litigation.

The thesis of this article is that, despite these concerns, as a general rule, spouses should be required to litigate tort …