Domestic Violence Lawsuits
My daughter Michelle is in her third year of Law School at UMKC and plans to join the firm soon. Just thinking about her journey makes me cry.
My thirty-something daughter was never interested in the law until she watched her Mom, my wife and law Partner Cindy, going into court. Cindy was a hero battling on behalf of a defenseless single mom against an unfaithful, abusive, narcissistic SOB. It was a normal day at the office for Cindy. For Michelle, it was inspiring. The day Michelle said, “Dad, I never wanted to be a lawyer, but now, I have never wanted anything more,” was the day she made me cry, again. Her brother recently interviewed Michelle on the topice of Understanding Domestic Abuse, here’s the link.
When an old personal injury lawyer like me hears about domestic violence my mind immediately goes to what are the civil remedies. Fortunately, in Kansas the abused partners has tort remedies.
Kansas abrogated interspousal immunity (See Flagg v. Loy 241 Kan. 216, 734 P.2d 1183(1987), Stevens v. Stevens, 231 Kan. 726, 647 P2d 1346 (1982), Ebert v. Ebert, 232 Kan. 502,656 P.2d 766 (1983) clearing the path for separate tort actions to be filed for domestic violence. The options for the practioneer in thinking of remedies for the client is filing a independent civil action or making a claim within the divorce case. We are all familiar with the legal concept that if you are filing a legal claim you will need to include all claims you have against the defendant or risk having the unmentioned claims foreclosed in the future. The issue is addressed in Kansas by statute.
Kan. Stat. Ann. § 23-2718 provides:
“(a) An action for interspousal tort shall not be consolidated with an action under K.S.A. 23-2701 through 23-2718, 23-2802, 23-2901 through 23-2905, 23-3001 through 23-3006, 23-3119, 23-3120, 23-3201 through 23-3222, 23-3301, 23-3402, 23-3403, 23-3510 and 28-179, and amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court.
(b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3) of K.S.A. 23-2701, and amendments thereto, shall not preclude an action for interspousal tort.
(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 23-2701, and amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 23-2701, and amendments thereto, based upon the same factual allegations.”
The statute prevents a court form consolidating a civil action for abuse with a divorce without the agreement of the parties. A divorce decree in an of itself does not preclude a civil action for abuse, which the statute calls an interspousal tort. It has not yet been decided with the statute addresses the situation where a property settlement agreement has a boiler plate language relinquishing all claims against the other spouse. It is an open question as to whether a general separation agreement waiver would act as a waiver of previous tort claims between the parties. I would argue that the public policy and force of this statute prevents such domestic torts from being unintentionally waived.
Subsection C would certainly prevent you from litigating the claims twice. Subsection C of Kan. Stat. Ann. § 23-2718 provides in material part:
“(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 23-2701, and amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations.”
In like manner if you already have a judgment in a civil action the statute will prevent you from coming into the divorce action for an additional claim. The last line of the of Subsection C of Kan. Stat. Ann. § 23-2718 provides in material part:
“An action for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 23-2701, and amendments thereto, based upon the same factual allegations.”
My wife Cindy, Michelle’s mom, who Shattered the Glass Ceiling in the legal profession years ago, (you can read about it at this link) her framed Law Degree to my daughter Michelle as a Christmas, telling her, “When you get your law degree put it in this same frame in front of my certificate, then you know every time you look at it on the wall, your Mom has your back.”