Aside from more immediate legal steps like restraining orders, arrests and eventual criminal prosecution of an abusive spouse, partner, or family member, a domestic violence survivor may also have the option of filing a civil lawsuit. The purpose of this kind of action is to recover damages (monetary compensation) for domestic violence injuries. Let's take a closer look at these kinds of cases.
There are a variety of procedures and agencies that a domestic abuse survivor can utilize to get immediate protection from an abuser. Many remedies—a restraining order, for example—are obtained through the criminal justice system. The first contact during or after a domestic violence incident should be a law enforcement agency, or an organization such as:
A civil lawsuit should wait until the situation has been made safe for the victim and for other family members. While the civil system does have procedures and remedies similar to restraining orders, those are typically not designed for situations involving immediate threats of violence.
During a marriage, the spouses’ money and property are typically treated as jointly-owned. This means that neither spouse is entitled to jointly-owned property in favor of the other spouse. So, even after a domestic violence incident, it could be difficult for a court to enforce a jury verdict if there is no way to "take" the money from one spouse and "give" it to another. Inititation of divorce proceedings is likely necessary to enforce any kind of damages award for domestic violence between spouses.
A final divorce is probably not necessary before a personal injury lawsuit is filed. If the abused spouse wins a jury verdict and damages for his or her injuries while a divorce proceeding is under way, the damages owed will probably be applied to the divorce settlement.
For example, suppose a couple has $100,000 that state law says must be divided 50/50 in a divorce. Suppose the wife wins a $25,000 damages award against the husband in a civil trial for domestic abuse. When the divorce is finalized, the wife will get $75,000 (her half of the original $100,000 plus another $25,000) and the husband will get $25,000 (his half of the original $100,000 minus the $25,000 domestic abuse verdict). Keep in mind that some states may also have rules regarding domestic violence that are built into divorce procedures as well.
A victim of domestic abuse (the plaintiff) may be able to file a number of different types of civil claims against the abuser (the defendant), including the intentional torts of assault (and/or battery) and intentional infliction of emotional distress.
If the physical harm caused by the abuse is severe, then the physical pain and suffering component of a civil assault and battery claim could be significant. Assault (without battery) and intentional infliction of emotional distress are theories that, by their nature, do not involve physical contact. However, the emotional pain and suffering a domestic abuse survivor goes through can be significant even when the physical harm is "limited" to bruises. Add to this is the fact that many cases of domestic violence will involve abuse that went on for months or years. A plaintiff’s lawsuit does not need to be limited to one act of abuse, and the damages awarded can be based on the cumulative effect, both emotional and physical, of long-term abuse.
While the emotional pain and suffering of the plaintiff may seem intuitive or obvious, enlisting the aid of an expert witness will almost always be helpful, and in some cases necessary. Expert witnesses are allowed to testify when the members of a jury may not have the knowledge or experience necessary to make an informed decision on whether a plaintiff was harmed, and to what extent.
The testimony of a psychiatrist, psychologist, marital counselor or other mental health professional could be a powerful way to bring home to the jury just how much harm domestic abuse can cause a plaintiff. If the plaintiff is claiming to suffer a particular type of mental health issue (post traumatic stress disorder, for example) the court will probably require that the plaintiff submit proof by way of expert diagnosis and testimony. Learn more about how medical treatment can affect the value of a personal injury case.