Intimate partner violence can be absolutely devastating for the victim and leave them feeling shattered, hopeless, and injured (both emotionally and physically). Nearly all victims wonder, “What can I do about it?” If you are the attorney for a victim of intimate partner violence, do you know how to respond? What legal rights do victims of domestic violence have?
Remember somewhere back in time in high school you likely learned about Newton’s Third Law of Physics: for every action there is an equal and opposite reaction. Likewise, family law attorneys need to remember a similar statement may also be said about intimate partner violence: for every act of domestic violence, the victim may have the right to an equal and opposite legal reaction—a domestic tort claim against the abuser.
Domestic torts are personal-injury claims arising from either intentional or criminal conduct within a family or intimate relationship. The most common example is injury arising from domestic violence, but it can also include marital rape, sexually transmitted diseases, revenge pornography, sex tapes, and threats to cause injury or death, among several other acts common to intimate partner violence. Domestic torts can arise within an intimate relationship regardless of whether the parties are married or not. However, when domestic torts occur within a marriage that is now being dissolved, these may also be called “divorce injury” claims.
Simple. Domestic tort claims can dramatically change the outcome of the divorce and substantially increase the amount of property your client is awarded in a divorce. Suing an abusive spouse may result in a money judgment in the victim’s favor, which becomes a “debt” that the abusive spouse can be required to pay the victim spouse in a divorce. The equitable division of property by a family court may be the best opportunity for an abused spouse to collect divorce injury damages.
Example: A married couple has $200,000 worth of equity in their home. Customarily, the divorce court may equally divide the home equity, and each spouse would get $100,000.
However, in a divorce injury case in which the husband has abused and injured the wife, the wife may also have the legal right to sue the abusive husband for causing her injuries. This may result in an additional money judgment in the wife’s favor against her husband (for example, $100,000). This judgment becomes a $100,000 “debt” that the abusive husband now owes to the victim wife. Consequently, when dividing marital property, the divorce court may also order the abusive husband to pay off his $100,000 debt by awarding the husband’s $100,000 house equity (that he otherwise may have received) over to the victim wife. In this example, the wife gets 100 percent of the house equity ($200,000), and husband gets nothing. Of course, results are individual, case specific, and will vary widely. This is why it is critically important for divorce injury victims to have their case properly evaluated by their divorce attorney.
You are likely aware of common personal injury lawsuits (e.g., car accidents), which primarily focus only on “compensatory” damages, such as pain and suffering, medical expenses, and economic losses. The big difference by comparison is that domestic tort cases will also include “punitive” damages. Why? Punitive damages are additional damages designed to punish and deter intentional, evil-minded conduct, which is exactly what domestic violence and divorce injuries are.
Because of the abuser’s “evil-minded conduct,” additional questions must also be addressed, such as “What is it going to take to financially punish this man?” “How much money does he have? “What are all his assets, both marital and personal?” The full extent of all his wealth becomes relevant and discoverable. Ironically, when punitive damages are included in domestic tort cases, an abuser’s wealth works against him! Punitive damages are specifically designed to both financially punish the abuser, as well as be large enough to send a strong message of deterrence to others in society. The public policy goal is to stop this man—and anyone else like him—from ever committing another domestic tort again.
Example: The following is an example from an actual domestic tort judgement obtained by the author. A woman was physically assaulted and threatened with a gun by her husband. She had cuts and bruises, spent overnight in the hospital, and incurred roughly $2,000 in medical bills. By comparison, if such injuries had been caused by a car crash, many personal injury attorneys would likely value the “compensatory” damages as being $6,000—equivalent to roughly three times the medical bills. But domestic tort cases are different. Instead, the jury awarded the wife a $200,000 compensatory judgment for her pain and suffering because she not only suffered physical injuries, but also severe emotional trauma and horror. Consequently, the compensatory damages were 100 times the amount of her medical bills. And the jury still was not done. The jury also considered what additional punitive damages were needed to financially punish this husband and to send a strong message of deterrence out to their community—and the jury returned an additional 1-million-dollar punitive damage judgment, bringing the total award to $1,200,000 judgment!
That’s why domestic tort judgments are so big and often produce eye-popping judgments of $100,000 to more than $10 million. If the parties are also married, divorce-injury claims can also create high-leverage pressure that can be a powerful and effective weapon in successful negotiations and can affect distribution of property in divorces, retirement distributions, custody of children, and distribution of life insurance or estate proceeds. Importantly, the victims finally feel valued and obtain a sense of therapeutic jurisprudence—which can restore hope, justice, and healing. For the client in the above example, the $1.2 million judgment became a debt that her husband owed her and dramatically changed the entire outcome of the property division in the divorce in her favor. In the end, she walked away with everything—even after several other divorce attorneys had previously told her it was not in her best interest to pursue an injury claim as part of her divorce.
Statistically, there are nearly 1 million divorces in the United States every year, and, simultaneously 2 to 4 million incidents of domestic violence occur every year. Logically, there would be expected a significant overlap of divorce cases in which domestic violence is involved. Women today have a powerful voice and want to hold abusers personally accountable. They want to make sure that there’s a change—domestic violence is no longer tolerated or kept silent. Domestic tort and divorce-injury claims can be a major part of the answer.
Two major studies both revealed that a staggering 42 percent of divorced women report that domestic violence was a major factor. (With This Ring: National Survey on Marriages in America, 2005; and Oklahoma Baseline Survey on Marriage and Divorce, 2001). These studies predict that on average four out of 10 of your female divorce clients will say, if asked by their lawyer, that domestic violence was a major factor in causing their divorce. Therefore, the critical issues become (1) are you asking your clients the right questions, and (2) are you providing your clients with the right legal services?
Every state has their own ethics laws, which are usually based on the American Bar Association Model Rules of Professional Conduct. Rule 1.1 states: “The lawyer shall provide “competent, representation,” including “thoroughness.” The comment clarifies that this includes “inquiry into” the factual basis of the client’s legal problem and must “keep abreast of changes in laws.” Furthermore, Rule 1.4 states that “a lawyer shall explain a matter” to the reasonable extent necessary to permit the client to make “informed decisions” regarding that representation. The bottom line is that lawyers have ethical duties to “ask” and to “inform.” Failure to do so could be legal malpractice.
According to a survey conducted by the American Academy of Matrimonial Lawyers, 95 percent of divorce cases are settled out of court and avoid a trial. Most settlement agreements contain a clause that waives all potential claims. This creates a potential trap for inattentive family law attorneys. Are divorce clients signing settlement agreements without their attorney adequately “asking” and “informing” of their potential rights, causing clients to unknowingly give up their rights to divorce-injury claims? Such is likely malpractice.
Several appellate opinions portend that legal malpractice cases against divorce attorneys for failure to properly advise clients of their claims against spouses may soon be coming around the bend.
The Texas Court of Appeals held in Moore v. Yarbrough, 993 S.W.2d 760, (Ct.App.Texas, Amarillo, 1999) held that divorce attorneys who failed to properly advise a wife who was the victim of domestic violence by her husband regarding the impact of finalizing her divorce had on her personal-injury claims may give rise to legal malpractice by the divorce attorneys. Specifically, the court found that the divorce attorneys had a duty to advise the wife of the possibility that res-judicata after finalizing her divorce could cause wife to lose her personal injury claims arising from domestic violence—and failure to do so may be legal malpractice.
Additional appellate court cases warn of potential legal malpractice claims against divorce attorneys for failure to properly investigate, inform, and advise the client of potential claims; failure to conduct discovery into potential claims; and failure to properly inform client prior to accepting settlement agreements. See, Stephen v. Sallaz & Gatewood, Chtd., 150 Idaho 521, 248 P.3d 1256 (2011); Wolfe v. Wolf Eyeglasses, 375 Ill.App.3d 702 (2007). The key seems to be that when a divorce attorney fails to properly inquire or advise a client of their potential rights (e.g., sue an abusive spouse), the attorney’s failure may not have allowed the client to make a sufficiently informed decision when accepting the divorce settlement agreement. Consequently, the divorce attorney may be responsible to the client for paying the domestic tort judgment.
Here, it is vital to remember that the value of domestic tort claims can be extremely large—and capable of producing catastrophic legal malpractice claims. How catastrophic, you may ask?
In 2019, there was a $50 million legal malpractice appellate opinion that occurred in Arizona, arising out of a domestic tort claim. Gibson v. Theut, 246 Ariz. 297 (Ariz. App. Div 1, 2019, depublished 2020). Admittedly the facts of this case were unusual (involving the murder of the spouse). The court found the attorney “failed to address or even advise” their client as to their legal rights because the attorney had “justified his decision on the basis that the chances of the defendant ever having any money or was collectible were slim.” The Arizona Court of appeals held that it was a proper fact question whether the attorney is liable for the judgment for failing to properly advise the client. Not surprisingly, soon after the Court of Appeal’s opinion, the attorney settled the legal malpractice case for an undisclosed amount. Although this case has since been depublished, it should nevertheless serve as a loud warning to attorneys as what catastrophic legal malpractice may be for failure to adequately inquire or inform clients regarding potential domestic tort/divorce-injury claims.
Fortunately, there is a simple solution to help reduce your malpractice risk! Wise divorce attorneys can easily add a simple “Inquire & Inform” divorce injury assessment form to all new client intakes. This form combines both of your ethical duties to “inquire” and to “inform.” It asks several questions designed to ascertain whether the client may have a potential divorce-injury claim. It also informs your clients of their legal rights and options regarding potential divorce-injury claims. This form can help you make sure you are fulfilling your ethical responsibilities and quickly ascertain whether your client may need additional divorce-injury services. Regardless of whether or not you ever intend to add representation of divorce-injury claims to your own law practice, you should nevertheless immediately incorporate the use of this form to protect yourself from malpractice liability for failure to inquire and inform. You should have every client fill out this form at the very first interview. A link to a free example form is provided at the end of this article.
While this article has primarily focused on the negative risks of ignoring clients’ potential divorce-injury claims, the flip side of that coin is that there are also several positive benefits to adding divorce-injury claims to your family law practice, including the possibility of dramatically increased profits and better outcomes with happier clients. Each divorce injury case has two billable cases for every client, one being the divorce case and the other an injury case. This remains a huge, untapped market with an estimated two to four million incidents of domestic violence every year, and 42 percent of divorced women saying domestic violence was a major factor in their divorce. If you are looking to grow your law practice and stand out from other family law attorneys, then adding divorce-injury claims to your practice can be a “blue ocean” opportunity with a void of current competition. Most importantly, you will be providing a potentially game-changing legal service that your clients may desperately need. It can be a win/win for both you and your clients.
Divorce attorneys, especially those who represent women clients, can be a key player in the fight against intimate partner violence and helping clients understand potential legal rights to sue an abusive partner or spouse. Family law attorneys should always inquire and inform their clients of potential domestic tort injury claims or otherwise risk legal malpractice liability. Victims of intimate partner violence have the right to an equal and opposite reaction to abuse—and, as their attorney, you likely are in the best position to inform them of potential domestic tort/divorce-injury claims and how they can legally and effectively fight back. You truly can make all the difference (for either good or bad) in your client’s fight against intimate partner violence.
A link to a free “Inquire & Inform” form and additional helpful resources for attorneys can be found in the free legal directory I created at divorceinjury.com.
