The Massachusetts Appeals Court recently reversed a Superior Court judge’s dismissal of a lawsuit for dollar damages brought by an ex-husband against his former wife, after a fully litigated divorce judgment had issued, in Kelso v. Kelso. The technical details could only be interesting to lawyers, parsing claim and issue preclusion, and yielding the result that even though the divorce judge had heard may of the same facts that were alleged in the follow on lawsuit, and had awarded fees to the husband in light of those facts, that none of the legal claims now pressed were at issue in the divorce case. Hence, the appellate court concluded, the suit is not barred by law, and may proceed to trial.
The useful reminder of this case for us, as divorce mediators, is that when parties settle a case, they generally sign off on binding waivers for liability on all acts and omissions of each other, up to the date of the agreement, thus precluding a later suit for damages. Not so, when the parties try a case to a judge because in that context there are no waivers signed of any kind. Part of our charge as mediators is to run a process that leads to knowing agreements. The Kelso case poses a challenge to us: to make sure that clients (who may be harboring thoughts of a later tort suit) understand the effect of the general waivers in divorce agreements; i.e., there will be no suits for any past acts, that are not expressly reserved in the agreement. It is just one more good reason for our firm policy that requires clients to have legal counsel to review any agreements that we draft, at the end of a successful mediation.
On a more arcane level, we ask the following: if the tort cause of action is based on facts that all occurred before the divorce trial, and if the future tort plaintiff did not disclose the existence of a chose in action on his or her trial financial statement, is not any recovery that occurs in the later suit a marital asset that was not divided by the divorce court, and thus, divisible in a post judgment action? If the chose in action was not disclosed on the financial statement, was a fraud committed, yielding a potential recovery back to the tort-defendant?
Starting to sound circular?