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Can I Sue My Spouse?

Posted by on in Legal Separation
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b2ap3_thumbnail_img.couple-yelling-silhouette-alberta-law.jpg In some circumstances, one spouse may consider suing his or her spouse for particularly egregious conduct. However, whether the spouse can bring a viable claim against his or her spouse depends on the nature of the behavior, the nature of the relationship, state law and the particular circumstances involved.

Common Law Considerations

At common law, suing one’s spouse was generally outlawed. The legal reasoning behind this is because a married couple was sometimes viewed as a single entity. Therefore, by suing one’s spouse, an individual was really suing himself or herself. This concept was largely known as the “spousal immunity” rule.

Additionally, legislatures and courts believed that allowing lawsuits against a spouse would lead to family disharmony. The state often has a vested interest in maintaining harmonious relationships and is reluctant to allow such causes of actions to be filed if there is a threat to the family unit.

Another perceived reason for prohibiting intra-spousal lawsuits was the belief that the spouses would collude together to conspire against an insurance company.

Reasons to Sue Spouses

On the face, it may seem that suing one’s spouse serves no legitimate purpose. For example, a couple who has equal ownership rights in their property may have the same property after a successful lawsuit. However, the identity of the owner may change, leaving one spouse at a disadvantage over the other. Personal injury awards are often considered separate property from the rest of the marital estate.

Additionally, sometimes a spouse may wish to sue another spouse because this is the requirement on paper. For example, if a spouse causes an automotive accident, the other spouse may not be satisfied with the insurance company’s offer. The other spouse may choose to sue, which requires naming the spouse as the defendant. However, if the other spouse is successful, the insurance company will likely be the one to pay out, not the spouse.

Another reason why one spouse may wish to sue another spouse is if the spouses are no longer together. When the spouses are separated, there may be legitimate claims that can be brought. If the spouses are no longer living together, suing a spouse may not have the same financial implications.

Prohibitions on Suing a Spouse

Some states specifically prohibit suing a spouse under statute or common law. However, even in states that generally do not permit suing one’s spouse, there are usually exceptions. For example, most states allow claims that involve the intentional torts of the spouse. A spouse may choose to sue the other spouse for assault or battery, for example.

Marital Privileges

Another layer of complexity involved in marital lawsuits is that a spouse may be unable to testify against the other spouse, making it more difficult for him or her to prove the claim.

The spousal testimony privilege allows a spouse to refuse to testify against the other spouse or to be called as a witness by an adverse party. State laws vary as to whether this privilege applies to only criminal cases or if it also applies to civil cases. However, this privilege would still allow a spouse to testify against the other if he or she chose to do so.

The marital communications privilege prevents a spouse from disclosing confidential communications made between the spouses during the marriage. This privilege belongs to the person who does not want the communications shared. Therefore, if this privilege exists in the state that has jurisdiction of the case, the spouse might be unable to prove a claim if the communications were integral to such claim.

However, states may have exceptions that permit such privilege to be ignored when the case is brought by one spouse against another or if one spouse committed an intentional tort on the other.

Alienation of Affection Claims

A common law tort called alienation of affection permitted a spouse to bring a lawsuit against a third party or spouse who he or she alleged was responsible for the failure of a marriage. This tort has largely been abolished. In the few jurisdictions that still allow it, the defendant must usually be a third party and not the spouse.

Household Exclusion Clauses

Even if the state may permit a spousal lawsuit, an applicable insurance policy may contain a household exclusion clause that prohibits a spouse or other household member from suing.


Some states have laws that restrict the amount of time that a person has to file a claim against a spouse or other family member. Additionally, some causes of action may have to be brought at the same time that the couple files for divorce or the claim can be barred.


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Guest Tuesday, 23 July 2024