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Assault Claims & Defenses in a Divorce, Elements, damages and how to plead

Cause of action of assault in a family law proceeding. Many times, in family law there are allegations of physical violence.

A party may seek a protective order,  or injunctive relief, but then also the alleged victim can assert civil claims for monetary relief against the perpetrator which includes past and future medical expenses, lost earnings lost earning capacity, physical pain, suffering, mental anguish past and future, disfigurement, physical impairment, and exemplary damages.

Assault Claims & Defenses in a Divorce

The elements of assault as contained in the Texas penal code applies to a civil suit for damages.

Under section 2201a of the Texas penal code there’s a definition given on assault.

And it provides that a person commits the offense of assault if the person: intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse, intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse, or intentionally or knowingly causes physical contact with another when the person knows or should reason believe that the other will regard the contact as offensive or provocative.

The defense that one may bring to a civil cause of action, you are required to plead this or its waived.

Defenses in a civil cause of action include defense to property and justification.

A person would be justified in using force against another when into the degree he reasonably believes force is immediately necessary to protect their self against the other’s use or attempted use of unlawful force.

A defendant in a civil case for a cause of action for assault has no right to an affirmative defense of self-defense if after being threatened by the plaintiff the defendant approached the plaintiff and provoked a confrontation with the plaintiff.

Although not a justification for assault, provocation is a mitigating factor in a suit for assault. Mitigating factors can be raised even if only a general denial is pled.

Mental anguish and exemplary damages

Mental anguish and exemplary damages are damages that you can ask for in a cause of action for assault with or without physical injury.

You must also recover exemplary damages if the finder of fact determines that the respondent acted in malicious willful or wanton matter. So, you have the exemplary damages would be an enhanced damage provision so many times what you have is a general cause of action for damages.

And then what are your damages? lost work or you have some property that has been destroyed perhaps your car was scratched you had slash tires so that is easy enough to put in a dollar amount.

But mental anguish a lot of times will be lost work but many times your anxiety or your mental health is something you’ll have to compensate, because you’ll still need to work so it will result in nightmares or weekends in which you’re sleeping for 18 hours straight or your lack of involvement in the community.

And so exemplary damage is necessarily are the enhanced damages where you don’t necessarily need a specific dollar amount for which it’s hard to trace a specific dollar amount. Based on your anxiety or your lack of social involvement after these events occur.

Now to sever cause of action from the property division is also permissible.

Personal injury claims that arise in divorce can be severed from divorce and tried in a  separate action independent from the property division.

The court can also award damages separate and apart from the property division so many times you don’t want to have the tort tried with the property division because if you do that then the court weighs the just right division with the torts.

And so, my preference is to try them separate if I am prosecuting and then try them together if I’m defending.

And the reason for that is the property division is already made there’s already a just right division and therefore the property of the spouse that you’re prosecuting is now their separate property.

So, there’s no property considerations to be taken into account as far as the just right division of the community estate coupled with any children of the marriage that you would want to also look at their care, how old they are, and any child support that may be ordered along with their health insurance.

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Michael Busby is a Houston divorce lawyer who has been in practice for over 20 years and appears daily in the Family Law Courts of Harris County and Fort Bend County Texas

Busby & Associates , have two Houston Offices, one in Chinatown, Houston Texas and another in Independent Heights, Houston, Texas. Michael Busby is Board Certified in Family law by the Texas Board of Legal Specialization.