Will Divorce Torts Play Here?

Is the $500,000 emotional-abuse award to Patti Chiles by a Texas jury an isolated incident, or an omen? Could it happen in California?

The answer to the first question is being debated. The answer to the second is yes--the legal structure is in place since California is one of 14 states that allow the recovery of damages for infliction of emotional and mental anguish--without evidence of physical abuse.

However, if a tort action (the legal name for a personal injury suit) is brought in a divorce case in California, “Our courts as a matter of policy won’t let that be part of the ongoing divorce action,” said matrimonial lawyer Harry Fain of Beverly Hills. (Texas is unique in that it is the only state that has jury trials in divorce cases.) Thus, a tort for emotional distress in California would have to be filed in civil court and tried by a jury “independent of the divorce action itself,” Fain said.

Legally, a rash of emotional-distress torts is a possibility in California. But is it a probability?

‘Lawyers Will Use It’

Fain, who said that, on balance, he is opposed to the concept, nevertheless knows “of enough lawyers who will utilize it to dramatize, to distort, to capitalize, (who will) find a way of using this kind of attack” to get financial settlements that are unwise and unworkable.

Stuart Walzer, who practices matrimonial law in Century City, predicted there will not be a huge number of these cases in California and in other states “where the woman fares reasonably well” in most divorce settlements. In Texas, he said, it’s “all guns blazing. The man can walk away with it all” and attorneys are “always looking for ways to increase the pot” for the woman.

However, in a presentation at an American Academy of Matrimonial Lawyers seminar in March on Maui, San Antonio attorney Jimmy Stewart said interspousal torts for emotional abuse is an issue that is like “a freight train coming down the track” in the effect it will have on family law.

And San Antonio attorney Richard Orsinger, who drew up one of the prenuptial agreements for Jerry Chiles, advised family law attorneys that, if they fail now to advise clients that it is a possible action, “I think you’re exposing yourselves to a (malpractice) suit.”

In an informal group session later, Stewart, Orsinger, Huston attorney John F. Nichols, who represented Jerry Chiles; and academy president James T. Friedman of Chicago discussed some of the moral, philosophical and pragmatic questioned raised by these torts.

Friedman said it is “the most important issue that’s come up since no-fault divorce” and “a real step backward (as) it flies in the face of what we were trying to do along the lines of eliminating fault.”

(Before California legislated no-fault divorce in 1970, there had to be grounds such as cruelty or adultery. Every state now has some form of no-fault divorce.)

Two Important Gains

And, Friedman said, it may well be used as a tool by the spouse who doesn’t want the divorce and fears being ripped off in the property division. By the mere filing of such a suit, he said, that spouse gains two important things: time and leverage. This leverage, he said, “will cause people to make settlements that they wouldn’t otherwise make.”

But Friedman saw a positive side to these torts: “You can make a case for the battered wife, battered husband. In a clear-cut case, why shouldn’t they be entitled to some sort of compensation? If a neighbor did the battering, they could get compensation for it.”

The extra burden that may be imposed on the nation’s courts was frequently mentioned by attorneys at the Maui meeting as a negative. But, Stewart said he isn’t buying that argument: “You’re saying, ‘It’s inconvenient. It takes up court’s time.’ So we’re not going to allow a recovery for a person who has been injured? That is a hollow excuse. Your civil rights cases, they take up court’s time. Are you going to go to blacks and say, ‘Hey, we’ve decided it takes up too much court’s time to let you be trying your case’? ‘And you women, with your sex discrimination cases . . .’ ”

“Apples and oranges,” Friedman responded. “When I say it will stop up the system, I’m talking about the whole divorcing system, the mechanism by which people can terminate bad marriages, terminate the situation that is causing them to suffer these injuries. The mechanism that society and the law have provided is the termination of that relationship . . . maybe you’re contributorily negligent for staying around that marriage for so long. . . .”

Said Nichols: “I think the absolute pitiful part of this whole thing is that it is a sign of a thorough breakdown and deterioration of the family unit . . . I just think we’ve screwed with Mother Nature to the point where the evolutionary process, design, pattern has been altered.”

Orsinger agreed: “The reason marriage has worked so well for so many thousands of years was because it had the support of the society, and it had traditions . . . your family would shun you if you got divorced, your religion said you would go to eternal perdition--and the woman had nowhere to go if she got divorced. These things are all slipping away . . . people can move across town and none of their new neighbors will know, or care.”

But Stewart said divorces may become more civilized if each partner knows that libelous or scandalous accusations might result in monetary sanctions. Because women are no longer chattels, he said, society must adjust and interspousal torts are another phase of this adjustment.

Deciding what is manipulation or emotional or mental harassment in a marriage is almost always going to be a close call, Orsinger said, but “I would think that in 10 or 15 years all of this noise will settle down and people will have an idea what kinds of wrongs will generate big money and what won’t.”

Nichols said: “Ten years ago everybody thought this palimony thing was going to go crazy. It never materialized. It didn’t shake out right. Society just wasn’t that upset.”

Some family lawyers argue that, in their desire to get big money for their clients, lawyers are no longer focused on the sanctity of the family institution and on the course of action that will be least embittering and damaging to any children of a marriage.

What, for example, of a situation, Orsinger asked, “where you don’t want (the couple) to reconcile because you think there’s going to be a big tort recovery and you’re going to get a big payoff?” Should attorneys be allowed to work on contingency, rather than hourly fees if a divorce action includes a personal-injury suit?

(In California, said Fain, “no self-respecting lawyer will normally take a contingent interest” in a divorce case on the basis of ethics and possible conflict of interest.)

A Good Settlement

And what is a “reasonable and fair” settlement in a divorce case? Friedman asked. “I think part of being a good divorce lawyer is to push down the wild expectations of a client (if they are) vindictive . . . because if you get that killer settlement it’s going to come back to haunt you. It will come back to haunt you through the kids. It’s not like an auto accident where you never have anything to do with the people afterward.

“If you can walk away from a divorce with people feeling they haven’t been taken advantage of that much, they’re going to walk away and get on with the rest of their lives. If you really knock them to the ground, you’re going to have a bad divorce.”

In general, 46-year-old Nichols said, he has found that the attorneys who are outraged at the idea of interspousal torts are 60 and older, while “those who are saying, ‘Hey, this is a brave new world,’ are the younger lawyers.”

Orsinger, who falls into the younger category, said he has not decided whether it is a good thing or bad, but he expressed reservations about “throwing our legal system into the middle of something that previously had been relatively private.”

And, Orsinger said, the picture of a troubled relationship that will be exhibited in a courtroom will be “an imaginary picture, drawn by lawyers and witnesses testifying about just what they can remember,” a marriage reconstructed in two weeks--”a very artificial, contrived situation.”

But, he said, “I think the ship has already pulled away from the harbor. What we (as lawyers) need to be doing now is not sitting here deciding whether a majority of this group thinks it’s a good idea or a bad idea but what the rules are and how they need to be used.”