Question Presented: Is it likely that one spouse would be granted an award of spousal support in a divorce for having been infected with a sexually transmitted disease (STD) by the other spouse?
Most states have spousal support/alimony statutes which list factors for the Court to consider when awarding spousal support. Many of these statutes, such as Ohio’s statute, include in the list “any other factor that the court expressly finds to be relevant and equitable” or something similar to this. Using this factor, courts do have the authority to consider the contraction of an STD between spouses when awarding spousal support. In many cases in which one party to a marriage contracts an STD, it is the result of an extramarital affair. The other party is then infected with the STD through continued sexual relations between the spouses. Obviously, there may be significant proof problems associated with establishing the origin of the STD.
Ohio, as well as most states, will also consider the health (physical, emotional, and psychological) of the parties when awarding spousal support. This is another factor which may lead to a party who contracted an STD from his/her spouse being awarded spousal support. People with STDs may have them for the rest of their lives and may need medical treatment for a long period of time or indefinitely. They may also go through emotional or psychological anguish. Furthermore, some STDs may later result in serious medical issues. For example, HPV is a chronic viral infection that can later develop into cancer. Courts may retain jurisdiction to modify a spousal support award if there later is an increased need because of an STD. Thus, medical needs because of an STD contracted from a spouse may be a factor in awarding spousal support. The costs of treatments, especially when the STD was contracted from a spouse, may well be considered with the other factors when awarding spousal support. However, it is important to realize these awards are not commonplace and are not typically based solely on infecting the spouse with an STD, but on the health effects and costs associated with the STD.
It is important to point out that many states permit a filing of a “domestic tort claim” seeking damages for the contraction of a sexually transmitted/venereal disease. These types of tort actions may vary, but generally are based on negligence, battery, and deceit theories. Sometimes, a party infected by his/her spouse with an STD will file for divorce/dissolution and in addition will file such a separate civil action. This may be the most effective way to seek compensation for the contraction of the STD. However, proof problems often abound in these cases. Unlike spousal support awards which are equity based, these claims seek financial compensation directly for the injury. This means the origin of the contraction of the disease must be clearly proven. Perhaps just the thought of the loss of privacy in filing this action may explain why there is so little litigation in this area of law. In addition, typically there is extensive discovery in these cases including depositions that could be very involved, costly and embarrassing.
Answer: So, the answer to the question posed above may be surprising: No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so!
In a few weeks I will be posting a follow-up article addressing this topic of “domestic tort” litigation in Ohio in more detail. Please stay tuned!
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.