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Can I Sue My Spouse?
Hennepin County Man Sues Wife - Discovers he is not the father of their children.

The Minnesota Court of Appeals recently ruled that a man could sue his wife after their divorce for fraud and infliction of emotional distress, when he discovered that two children born during their marriage were not his. The appellate court stated that even though the man may have brought his claims as part of the divorce, he was NOT prevented from later raising the claims if the divorce settlement did not include a broad release including interspousal torts.

In his case which is entitled G.A.W., III vs. D.M.W.,husband is pursuing reimbursement for out-of-pocket expenses and emotional distress caused by the wife’s claims that the children born during the marriage were his biological children.

Most tort claims between spouses involve domestic assault (including threats) and other violence in the household which results in a physical injury or even emotional distress. In order for a claim of emotional distress to be effective, there must usually be medical documentation of the distress either manifesting itself physically or psychologically (e.g., ulcers, panic attacks, depression). Additionally, successful lawsuits have also been brought when one spouse infects the other with a sexually transmitted disease that he or she should have known they carried.

Though these tort claims may be brought as part of the divorce process, there is no requirement for that to occur. If a spouse has a potential tort claim, it may be preserved only if a divorce settlement does not include a general release of all claims between the parties. There are several issues that help parties determine whether or not to bring their tort claim as apart of the divorce proceeding rather than as a separate claim.

  • A divorce proceeding is heard by a Judge, whereas, a civil proceeding is tried to a jury.
  • Oftentimes juries are more sympathetic to claims of assault than are Judges;
  • Tort claims may complicate and prolong the divorce proceedings which oftentimes involve children;
  • Certain awards for injuries suffered during the marriage may be discharged in bankruptcy if the issues are litigated outside of the divorce process. If the claims are brought as part of the divorce action, the injured spouse may receive a larger share of the marital property or spousal maintenance rather than a personal injury award.
  • Property settlements and spousal maintenance awards are not likely to be discharged in bankruptcy proceedings;
  • There may be statute of limitation problems if the claim is brought outside of the divorce proceeding. Divorce proceedings may be time consuming affairs. The applicable statute of limitation for torts is two years from the date of the incident or the discovery of the incident. This statutory period may be extended to four years if the claim involves relief under the Violence Against Women Act which is a federal civil rights claim.


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Minnesota courts look at many factors in deciding spousal support amounts. A spouse may be entitled to maintenance if he or she cannot support himself or herself despite any marital property received after distribution. Financial resources, employment, education and the personal circumstances of each spouse are considered. A court examines several factors to determine if maintenance is appropriate, and if so, how much and for how long. They include (1) the duration of the marriage, (2) the standard of living enjoyed during the marriage, (3) each spouse's age and health, (4) each spouse's assets, income or ability to earn income, (5) the time needed for the requesting spouse to receive training or education and obtain sufficient employment in order to support himself or herself and (6) the owing spouse's ability to pay. A court can order temporary support while the divorce is pending. Most maintenance is ordered for a specific length of time. Once maintenance is ordered, it can be modified upon a showing of a substantial change in circumstances.
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