Women now have remedies other than divorce and criminal proceedings available to them. A majority of states permit a spouse to reserve the right to institute a tort action against a spouse or ex-spouse even if the alleged injurious conduct could have been an underlying consideration in the judgment of divorce. In Chen v. Fischer, 6 N.Y.3d 94, 843 N.E.2d 723 (2005), the New York court noted that while divorce and tort claims could be joined, requiring such "joinder of interspousal personal injury claims with the matrimonial action would complicate and prolong the divorce proceeding," increasing the emotional complexity of the divorce and affecting issues such as child custody and support or distribution of assets. Such delays could lead to injustice and hardship for victims of domestic violence in particular. Id. at 99, 726. But see, Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979) (setting forth minority view requiring joinder).
In urging the development of a tort of domestic violence, Professor Sarah Buel, herself a domestic violence survivor, has noted:
“Battered women are crime victims who suffer physical, psychological, sexual, and financial harms. The current legal system does not begin to provide compensation, restitution, or funds for survivors to return to normalcy, as it focuses on terminating the marriage; division of property; and child custody, visitation, and support. ...[S]mall changes in torts practice, easily accomplished through court and legislative advocacy, could remedy many of its present failings. Such reforms are much needed and are consistent with the principles of tort. It is furthermore completely theoretically and jurisprudentially accurate to use tort law in redress for domestic violence harms.”
— Buel, Access to a Meaningful Remedy (2004) at 948.
Thus, practice is only gradually catching up with theory in this area.
