Brief (1)
SB 420 provides that an action for interspousal tort shall not be consolidated with an action for divorce or separate maintenance unless the parties agree and the court approves the consolidation.
The bill provides that a decree of separate maintenance or divorce granted under the no fault provisions of the divorce code shall not preclude an action for interspousal tort. A separate action for interspousal tort is precluded if the fault grounds are the basis for the divorce or separate maintenance if based upon the same factual allegations. In addition, a divorce or separate maintenance may not be granted on fault grounds if an action for interspousal tort has been finally determined based upon the same factual allegations.
Background
The bill was supported by the Family Law Advisory Committee of the Kansas Judicial Council. A representative of the Council said that the purpose of this bill was to set out the applicable civil procedure where spouses anticipate filing both a divorce action (or action for separate maintenance) and an interspousal tort action. Some of the questions that arise in discussing interspousal torts and divorce proceedings are whether the two types of actions should be tried together or separately, and whether one type of action should preclude the other.
Before the 1980s, Kansas had in place a judicial doctrine called interspousal tort immunity. That doctrine prevented spouses from suing each other for things like assault and battery, or negligence in causing a car accident. In 1982, the Kansas Supreme Court created an exception to that doctrine and allowed spouses to sue each other for intentional torts. Stevens v. Stevens, 231 Kan. 726 (1982). Then, in 1987, the Kansas Supreme Court followed the national trend and abolished interspousal tort immunity completely in Flagg v. Loy, 241 Kan. 216 (1987). Since that time, spouses in Kansas have been able to sue each other for both intentional and unintentional torts.
The court will only consider fault in determining the financial aspects of the divorce in the "rare and unusual situation where misconduct is so gross and extreme that failure to penalize would itself be inequitable." Marriage of Sommers, 246 Kan. 652 (1990). However, where the court does consider fault in making a division of the marital property or in awarding maintenance, the Family Law Advisory Committee thought it would be unfair to allow the plaintiff to then file a tort action based upon the same facts that constituted the fault element of the divorce, thereby obtaining a double recovery.
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html