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Family Law Quarterly

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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 claims against each other that arose during the marriage relationship in the divorce action, or lose them. This proposed rule flows from the general thrust of both modern procedural and divorce reform, which encourage resolution of all grievances between a divorcing couple in a single proceeding. While claims for tort and divorce serve different social purposes, the facts establishing both claims and relief the plaintiff receives are inextricably intertwined. Modern rules of procedure generally compel parties to join such interconnected claims. The problems that the opponents of mandatory joinder foresee can be solved in a modern procedural system; careful judicial administration can prevent loss of jury trial rights and inequitable application or undue complication of the divorce action. Modern courts are capable of dealing with claims based on different legal theories arising out of a single factual base in one litigation.

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