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.