According to the National Law Journal, a marital tort is an "action brought against third parties or by one spouse against the other." A tort is usually raised at the time of divorce. Originally, these torts were prohibited between spouses and only recognized when they involved the interference of a third party in the martial relationship. Torts can arise from physical or sexual assault, emotional distress, transmission of a venereal disease, or an invasion of privacy.

There are two main types of marital torts. First, there are torts for alienation of affectation, and second, there are torts for criminal conversation. Alienation of affection involves loss of love, society, comfort, or companionship of the other spouse. The plaintiff seeks compensation for these losses from the spouse or from the third party. Though these allegations are normally due to sexual conflicts, there is no law that says that alienation of affection only regards sexual infidelity. As well, a marital tort can operate under criminal conversation. This is not as common. According to the National Law Journal, a criminal conversation tort occurs when the plaintiff's spouse is involved in an extramarital affair. This is because the marital partners had ownership of the others affections and sexual services.

Currently, it is common for men and women to pursue a tort against their spouse in the event of a divorce. In the past, this was illegal due to interspousal immunity. Interspousal immunity claimed that if a man and woman were legally married they were "one flesh" and had no right to sue one another. This changed under the Married Woman's Property Acts, though courts were slow to accept thr changes. Now, all fifty states recognize marital torts and have disregarded interspousal immunity. Intentional torts are used to compensate a spouse who is the victim of physical abuse. Battery is the most approved tort action. When it comes to "emotional" trauma, torts are harder to determine. Laws are inconsistent in this area, because emotional damage is incredibly subjective. Some of the most commonly-approved emotional cases include emotional trauma due to contracting a sexually transmitted disease, false imprisonment, or illegal wire-tapping.

If you are considering marital tort action, it is highly advised that you talk to a family law attorney first. You will need to settle many details, including the question of joinder. This refers to whether or not the tort action should be included within your divorce or carried separately. This depends upon whether or not your state requires joinder. A few states prohibit joinder and others allow but do not require it. You will want to determine the most financially efficient way to go about your tort. Sometimes, joining a divorce with a tort can reduce the total expenses for legal fees and litigation costs. As well, the evidence in the divorce case can be use simultaneously with the tort case. However, in some situations it better to postpone tort action during a divorce. This is especially true if the action will be tried by a judge instead of a jury. Judges will normally withhold tort compensation, while juries are more generous.

Before taking tort action, you need to consider the provability of your case. If you have a solid claim, then a marital tort could get you the compensation you deserve. If your case is relatively weak, and based on emotional feelings, then you may want to bypass pursuing a marital tort. If your spouse is not financially equipped to provide the money that you are asking for in your tort, you will most likely be disappointed. If you wait to pursue your tort until after divorce has been finalized, you may encounter complications. Your ex-spouse may claim that he or she already provided compensation in the alimony and property division given with the divorce. Also, sometimes attorneys will claim that as spouses divorce they "release each other from any and all other claims." This bars the individuals from any future tort actions. Make sure to hire a lawyer well-versed in tort claims before embarking on this complicated process.