Newly divorced but want to sue ex

[Angiew5507]

What is the name of your state? Florida

Can I sue my ex in small claims court for intentional infliction of emotional distress that took place while we were married. He raped me while we were married. I have text messages from him threatening to rape me as well as messages telling me that I have to have sex with him or he will throw me out of the home. This has caused me to have anxiety the doctor has prescribed medication to help me manage it. I was perfectly healthy before all of this. We have been divorced for less than a month.

 

[Ohiogal]

What is the name of your state? Florida

Can I sue my ex in small claims court for intentional infliction of emotional distress that took place while we were married. He raped me while we were married. I have text messages from him threatening to rape me as well as messages telling me that I have to have sex with him or he will throw me out of the home. This has caused me to have anxiety the doctor has prescribed medication to help me manage it. I was perfectly healthy before all of this. We have been divorced for less than a month.

Did you report the rapes?

 

[Angiew5507]

No I didn't to be honest it didn't enter my mind to report him. I know this is going to sound stupid but i didn't realize i was being abused until i started counseling sessions. I thought even though i didn't want to and i told him i didn't want to we were married so it was different. I also didn't understand that him saying that i had to have sex with him to stay in the home was coercive sexual abuse again until i went to counseling. The same for the financial abuse, i didn't understand it. I've learnt a lot from this experience.

 

[Ohiogal]

report him now... but suing him will be difficult

 

[Litigator22]

This isn't much to offer, but all I can say in response to your question is that there are two opposing schools of thought with respect to divorce and interspousal tort claims. (The word "tort" being defined as "a civil wrong leading to liability for damages".) And since the abolishment of spousal immunity seems to be the subject of much controversy.

What some treatises call the majority view - "different causes of action analysis" - would allow you the right to institute a tort claim against your ex husband post divorce. The theory being that a claim for divorce and one for a tort are separate and independent causes of action and that the doctrine of res judicata does not apply.

In other words, an action in tort against the ex husband isn't lost or deemed abandoned solely because it wasn't asserted in the dissolution of marriage proceedings.

In contrast other jurisdictions such as Texas * have adopted a "transactional approach to res judicata" to the somewhat anomalous effect that whereas it is permissible to join a tort action with a claim for divorce, the principles of res judicata still apply.

A view point which in Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) was applied to deny the ex wife's the right to prosecute a civil action against her former husband for an assault that allegedly occurred pre divorce. The Texas court reasoning (curiously) "that interspousal tort claims and divorce proceedings would remain separate only where the facts supporting the tort action are different from those supporting a petition for divorce".

Florida? I haven't come across a case in your state that has dealt directly with subject of divorce and interspousal torts. The nearest might be that of Davis v. Dieiujuste 496 So 2nd 806 (Fl Sp. Ct l986) where upon the principle of res judicata a former spouse was precluded from bring a separate action for an equitable division of property not covered in the original proceedings.; to-wit:

"where a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations."

 

[Zigner]

Fantastic post - but maybe you could distill it down to an answer the OP would more easily comprehend - and one that woudl actually apply?

This isn't much to offer, but all I can say in response to your question is that there are two opposing schools of thought with respect to divorce and interspousal tort claims. (The word "tort" being defined as "a civil wrong leading to liability for damages".) And since the abolishment of spousal immunity seems to be the subject of much controversy.

What some treatises call the majority view - "different causes of action analysis" - would allow you the right to institute a tort claim against your ex husband post divorce. The theory being that a claim for divorce and one for a tort are separate and independent causes of action and that the doctrine of res judicata does not apply.

In other words, an action in tort against the ex husband isn't lost or deemed abandoned solely because it wasn't asserted in the dissolution of marriage proceedings.

In contrast other jurisdictions such as Texas * have adopted a "transactional approach to res judicata" to the somewhat anomalous effect that whereas it is permissible to join a tort action with a claim for divorce, the principles of res judicata still apply.

A view point which in Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) was applied to deny the ex wife's the right to prosecute a civil action against her former husband for an assault that allegedly occurred pre divorce. The Texas court reasoning (curiously) "that interspousal tort claims and divorce proceedings would remain separate only where the facts supporting the tort action are different from those supporting a petition for divorce".

Florida? I haven't come across a case in your state that has dealt directly with subject of divorce and interspousal torts. The nearest might be that of Davis v. Dieiujuste 496 So 2nd 806 (Fl Sp. Ct l986) where upon the principle of res judicata a former spouse was precluded from bring a separate action for an equitable division of property not covered in the original proceedings.; to-wit:

"where a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations."

 

[Litigator22]

Fantastic post - but maybe you could distill it down to an answer the OP would more easily comprehend - and one that woudl actually apply?

Then how about this?

Yes, no and maybe.

 

[Just Blue]

Then how about this?

Yes, no and maybe.

Perhaps heavier on the info but lite on the legalese?

 

[Litigator22]

Perhaps heavier on the info but lite on the legalese?

Mmmm . . but rather than circling about with catchy words, why don't you simply ask that I dumb it down so that you can understand it?

Now regarding the "maybe" stuff.

Perhaps you can explain the Texas Supreme Court's reasoning in Twyman wherein it stated that it is permissible to join a tort claim with one for dissolution of marriage, and yet the consequences of its ruling makes it mandatory? Ergo, dismissing the ex wife's post divorce cause of action for an assault allegedly committed during the marriage on the principle of res judicata!

(Similarly dissonant with its holding that whereas the state's Constitution prohibits a Texas court from ordering the garnishment of the earned wages of a Texas resident the same court can enforce an order from a foreign court garnishing a Texas resident's earned wages.)

Anyhow nothing serious intended here. Much too hot!

 

[Just Blue]

Mmmm . . but rather than circling about with catchy words, why don't you simply ask that I dumb it down so that you can understand it?

Now regarding the "maybe" stuff.

Perhaps you can explain the Texas Supreme Court's reasoning in Twyman wherein it stated that it is permissible to join a tort claim with one for dissolution of marriage, and yet the consequences of its ruling makes it mandatory? Ergo, dismissing the ex wife's post divorce cause of action for an assault allegedly committed during the marriage on the principle of res judicata!

(Similarly dissonant with its holding that whereas the state's Constitution prohibits a Texas court from ordering the garnishment of the earned wages of a Texas resident the same court can enforce an order from a foreign court garnishing a Texas resident's earned wages.)

Anyhow nothing serious intended here. Much too hot!

I see the new name did nothing to effect your charm...