Divorce Mediation Blog

Post-divorce Tort Suit: Kelso v. Kelso A Concern for Divorce Mediators and Circular Reasoning?

Wednesday, November 12, 2014

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?

Get e-mail notifications of new blog posts! Enter email address below.:

Delivered by FeedBurner

other articles

recent posts


divorce arbitration mediations mediators private dispute resolution alimony statute COLA Alimony Reform Act divorce arbitrators Baseball Arbitration Uniform Arbitration Act Defense of Marriage Act General term alimony divorce agreement Boston Massachusetts alimony Divorce Baseball arbitrator fraud divorce mediations rehabilitative alimony Levine Dispute Resolution annulment alimony law Levine Dispute Resolutions arbitration family law arbitrators health insurance arbitrators dispute resolution divorce lawyers support orders Twinkies family law mediation MLB labor agreement Same Sex Marriage The Seven Sins of Alimony Massachusetts lawyers Child Support Guidelines Levine Dispute Resolution Center LLC disputes med-arb med/arb alimony reform legislation divorce mediators Family Law Arbitration alimony orders Matrimonial Arbitration how baseball arbitration works mediator traditional negotiations alimony divorce mediator pre-ARA alimony SJC family law arbitrator Massachusetts high-risk methodology divorce litigation divorced Levine Dispute Resolution Center family law Act Reforming Alimony in the Commonwealth Chouteau Levine self-adjusting alimony resolve disputes Massachusetts Alimony Reform Act family support Divorce Agreements child support medical benefits litigation conciliation Baseball Players lawyer-attended mediation family mediation DOMA special master facilitated negotiations Massachusetts Lawyers Weekly Self-adjusting alimony orders IRC §2704 divorce mediation health coverage separation Obamacare divorce and family law mediators Cohabitation divorce and family law Massachusetts alimony and child support family and probate law disputes mediation divorce judgment Massachusetts divorce mediators Major League Baseball Arbitration LDRC lawyer divorce process lawyers divorce arbitrator