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Divorce Affairs — Marital Tort Basics

by Wes Cowell, updated 6 June 2015

A new law (SB 57 goes into effect 1/1/2016) abolishes the "heartbalm torts:"  alienation of affectionsbreach of marriage promise, criminal conversation, and seduction.  These torts have a two year statute of limitations.  If your spouse's affections are alientated before midnight on 31 December 2015, you'll have until 31 December 2017 to file your case.   After 1 January 2018, these torts will be gone.  Need advice? Callleave your info, or schedule a consult.


A “tort” is an intentional act that causes harm to another.  Assault, battery, and intentional infliction of emotional distress, are all “torts.”  Tort cases are brought in civil court – not criminal court.  A defendant may be guilty of a crime (like battery) and may be punished by a criminal court (by jail time or a fine).  That same defendant, however, may also have to face justice in a civil court “tort” case.  When one suffers a tort, the remedy is usually an award of money by a judge or jury in the civil court.  For example, O.J. Simpson was acquitted of the murder of his former spouse, but was found guilty in a case brought in civil court by the family members who survived the victims. That is an example of civil liability for an otherwise criminal act.


One group of torts – known as “domestic torts” or “marital torts,” because they arise out of the marital relationship – appears in divorce cases from time to time. 


A spouse’s evil act may serve a grounds for a divorce, as the basis for a criminal prosecution, and also as the basis for a civil tort case brought by the injured spouse. Illinois divorce courts generally prohibit a financial award for bad conduct during the marriage. Thus, in divorce court, there can be no additional financial recovery for spouses of adulterers, batterers, or emotional abusers.  Marital tort cases, however, do not always have to be brought before the divorce judge.  Instead, in many circumstances, they may be brought as a case separate from the divorce in a different courtroom, before a different judge.  On the other hand, a tort claim may be brought as a second count in the complaint for divorce.  In that case, the respondent may seek to empanel a jury to hear that portion of the case or may seek to sever that part of the case and remove it to another judge hearing civil litigations matters.  Be very careful, because sloppy strategizing can torpedo many claims.  If contemplating a tort action in conjunction with the divorce case you must pay close attention to the law of claim preclusion (res judicata), issue preclusion (collateral estoppel), judicial estoppel, and the statute of limitations.  Should you bring one action or two?  May the tort action be joined with the divorce?  If not joined, will the latter tort action be barred?  If an issue is litigated the divorce proceeding, will a party be estopped from re-litigating that issue in the tort case?


Originally, there were four “heartbalm torts” 1) alienation of affections, 2) breach of marriage promise, 3) criminal conversation, and 4) seduction. The heartbalm torts originated centuries ago in the common law as a means by which to protect the peace and stability of family units from outside interlopers.  For the most part, they stemmed from a man’s property rights in the being, services, and companionship of his wife and children.  Heartbalm lawsuits were originally available only to men.  In the eyes of the law, women had virtually no rights and they were, for nearly all considerations, the property of their fathers until marriage and then were the property of their husbands.


In the first half of the twentieth century, heartbalm torts were employed by some unscrupulous individuals to extort and blackmail innocents and were generally tools of financial and legal abuse. So, many states passed “heartbalm acts” that specifically prohibited heartbalm lawsuits. Illinois never took such action and still permits lawsuits based on the ancient, common-law heartbalm torts, but Illinois laws have been amended to include strict requirements and financial caps on damage awards.


Whether heartbalm torts should remain is debatable. They do little or nothing to preserve the marital relationship – they are almost always filed only after the marriage has been dissolved or has reached a point where it is irretrievably broken – heartbalm lawsuits seem to be based more on revenge and retribution than reconciliation. On the other hand, a strong argument can be made for awarding damages to a party who has committed everything to a relationship only to be coldly betrayed by his or her partner.



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