Can You Sue Your Ex For Emotional Damage

The topic of emotional distress frequently arises during conversations that we have with our family law clients. People often claim their spouse’s actions have caused them severe psychological trauma, and in the heat of divorce, they want to seek compensation for emotional distress. Suing for psychological damage or emotional distress is an option in Texas (in limited situations) but it’s more complicated than most people (and many family lawyers) realize.

You may need to consult two lawyers vs. one lawyer for emotional distress

If you’re wondering how to sue for emotional distress, your best first step is to seek legal advice. In general, you can sue someone in Texas for a tort—which is a wrongful act or infringement of a right that leads to a civil legal liability. So, can you sue for emotional distress in civil court? Yes, but it depends on the circumstances. You should also keep in mind that intentional infliction of emotional distress (IIED) has very specific elements and is one of the most difficult tort claims to win.

I’ll be the first to admit that I’m not an expert in civil torts litigation, which is why I work in tandem with experienced civil litigation attorneys when clients broach the question: “Can you sue your ex for emotional damage?” However, claims of emotional abuse do come up in relation to divorce and child custody cases, which based on certain divorce fault grounds may allow a party to ask for an unequal division of the marital estate.

It’s critical to weigh your options in both the family courts and civil courts, because under the Election of Remedies in Texas, you generally can’t sue someone for the same offense twice. In other words, it prevents a person from double recovery for a single wrong. A family law attorney can explain what remedies are available through the family courts, while a civil litigation attorney with experience bringing and defending tort claims can review the Election of Remedies for civil court.

Can you sue someone for emotional abuse alone? In Texas, it’s very unlikely you would be able to sue someone in civil court solely for intentional infliction of emotional distress (IIED). However, you may be able to seek damages for emotional abuse or distress in conjunction with another tort claim, say a physical assault or sexual abuse at the hands of a spouse or partner. Again, you would want to consult an attorney who specializes in personal injury and tort litigation to learn about your options in civil court.

How is a lawsuit for emotional distress handled in family court?

Texas is a community property state, which means all income, assets and debts acquired during marriage are to be divided in a fair and equitable manner upon divorce. As noted above, some instances of emotional damage can be addressed in an unequal division of the marital estate claim during a divorce.

We most frequently see supportable claims for an unequal division of the marital estate where a party has been subjected to family violence (physical abuse, sexual abuse) and where emotional distress has occurred as a result. Unequal division may also be an option where transmission of a sexually transmitted disease occurred due to a spouse’s infidelity, which would clearly cause additional concern for someone who is a victim of cheating.

However, under the Election of Remedies there are certain claims you can’t bring together with an unequal division of the marital estate claim. For example, when you have wasting of community funds, cruel treatment or disparity of earnings—and you’re asking the court for an unequal division of the marital estate—you generally don’t see that handled in conjunction with claims for emotional distress.

Strangely enough, some of the emotional distress claims filed in court may actually be collectable under a couples’ homeowner’s insurance. This seems a bit ironic because in a way, the parties end up suing themselves. But if you’re married and you have homeowner’s insurance, you may want to check if emotional distress claims are covered by your homeowner’s policy.

How to prove emotional distress in court

In general, it isn’t easy to prove emotional distress in Texas. You can’t sue someone for emotional distress simply because they yelled at you or hurt your feelings. Behavior generally needs to rise to the level of egregious and horrific in order for a judge or jury to award damages for emotional distress.

The burden of proof is also placed exclusively on the party who is seeking damages for emotional distress. The other party doesn’t need to prove that he or she did not cause emotional distress.

You will need to bring solid evidence to the court to prove your case. Specific evidence, like medical records that show a physical harm caused emotional distress, tends to carry more weight. These records could reflect medication or therapy you have received to help cope with the symptoms of emotional distress, including medications for insomnia, anxiety or depression.

Evidence provided by experts, such as medical doctors and therapists, is also considered more credible than testimony from friends or family members who say they have witnessed your emotional distress. Don’t assume the court or a jury will believe your claims of emotional abuse, simply because your best friend says so.

It’s also a good idea to keep a written record (like a journal or diary) of the emotional issues you have experienced during your relationship. This evidence helps illustrate the timeline associated with the alleged egregious behavior, along with the emotional issues that occurred along the way and any medical treatment you received as a result.

What kind of damages are emotional distress lawsuits likely to bring?

It depends on how you and your attorneys decide to approach your case, and there are several factors involved. If you decide to pursue a claim for an unequal share of your marital estate, then it depends on the value of your estate and how egregious the judge or jury views the behavior of the other party and what evidence of emotional distress you can provide.

On the other hand, if you pursue your tort claim for IIED through the civil litigation process, and you file your claim in conjunction with a tort involving physical or sexual abuse, damages are handled differently. The state of Texas has placed caps on damages for tort claims, and in any event, the amount would be based on the type of act or infringement of rights a party is liable for committing. A civil litigation attorney can give you a better estimate of the damages you may be able to collect in your particular case.

You also need to take into account the expenses involved with bringing a claim for emotional distress. For example, most family law firms charge an hourly fee for their services to bring a case to family court. Civil litigation attorneys can charge from thirty-three and a third percent (33.33%) to up to forty percent (40%) of the financial damages a party collects.

So, can you sue your ex for emotional damage? In some cases, yes. However, you have to decide whether it’s worth the time, money and further emotional distress it will cost to bring the case to court. Just as important, if your ex doesn’t have any assets or money to pay you anyway, a lawsuit for emotional distress would likely cost more than any damages you would end up seeing.