1-281-DIVORCE (348-6723)


1-281-DIVORCE (348-6723)

Intentional Infliction of Emotional Distress in a Divorce as a Cause of Action

Elements of intentional infliction of emotional distress, some case law examples we will discuss the elements to prove this cause of action in a divorce proceeding.

One spouse in a divorce proceeding can sue the other spouse for intentionally or recklessly causing severe emotional distress by extreme and outrageous conduct.

This claim is available only in those situations in which the severe emotional distress is the intended consequence or primary risk of the actor’s conduct.

Intentional infliction of emotional distress is a considered a “gap filler” tort that should not be extended to circumvent the limitations placed on a recovery of mental anguish damages under a more established tort doctrine.

The purpose is to supplement existing forms of recovery by providing a cause of action for conduct that is that is more established neighbors in the tort doctrine would technically fence out.

The fact that the conduct also causes physical harm does not preclude recovery for emotional distress.

These elements of this tort are going to be the:


  1. Defendant acted intentionally or recklessly
  2. The conduct was extreme and outrageous
  3. The actions of the defendant caused the plaintiff emotional distress
  4. The emotional distress suffered by the plaintiff was severe.

Emotional and outrageous conduct

“Emotional and outrageous conduct is conduct” so outrageous in nature, and so extreme in nature, as to go beyond all possible bounds of decency, and to be considered as utterly intolerable in a civilized community. Liability does not extend to mere insults, threats annoyances petty oppressions or other trivialities.

It is for the court to determine in the first instance whether a defendant’s conduct was extreme and outrageous.

But when reasonable minds differ, it is for the jury, subject to the court’s control, to determine whether, in a particular case the conduct was significantly extreme and outrageous to result in liability.

So as the cases give you this analysis for the layperson what this means is you need to have a lawyer who knows your judge and if that judge is more prone to sensitivities that may be something that you would want to stay with that judge, if that judge is hard as nails and many times conduct that another may find extremely offensive the judge shrugs off then you would want to pay a jury fee and take it to jury trial.

Intentional infliction of emotional distress is not available as a cause of action unless the actor intended to cause severe emotional distress, where such distress is a primary risk of the conduct.

If the complained-of conduct “is intended or permanently likely to produce a very emotional distress, it is the applicable theory of recovery, even if the actor’s conduct also produces some other harm. Mental anguish damages: “The plaintiff can request damages for mental anguish stemming from extreme distress caused by the defendant’s extreme and outrageous conduct.

Texas law defines mental anguish as a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of pain that results from painful emotions such as grief, severe disappointment, wounded pride, shame, despair, or public humiliation.

“Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, and worry. To be recoverable, the distress must be so severe that no reasonable person should have expected to endure it.

The plaintiff must prove he suffered more than mere worry, anxiety, vexation, embarrassment, or anger.

“The process of awarding damages for the plaintiff is discretionary and the ability to determine the damages is inherently difficult because of the alleged injury is subjective, unliquidated, and non-pecuniary loss. Given this lack of objective measures, so long as some mental anguish has been established, the task of fixing the exact amount of damages is “generally left to the discretion of the fact finder.

But the discretion of a fact finder and awarding damages for mental anguish is not unlimited.

An appellate court will generally uphold a claim of mental anguish damages against an evidentiary sufficient challenge when the claimant has introduced direct evidence of the nature, duration, severity of the mental anguish that establishes “substantial disruption” to the daily routine of the plaintiff.

An award of mental anguish damages may also be supported by some evidence of a high degree of mental pain distress that is more than worry, anxiety, embarrassment, or anger.

Some examples of extreme and outrageous conduct

  • A husband called the marriage anniversary a day of mourning
  • A husband compared wife to a nurse in his office with a perfect figure telling wife she was fat
  • Husband called wife a lesbian after she made friends with several women at a church retreat
  • Husband spit on wife when she was holding their infant
  • Husband threatened wife with a gun
  • Husband threatened to kill wife, stated he had been “thinking of ways to kill her”
  • Husband left the family two times and did not tell the wife where he was.

Examples of Conduct that is not significantly outrageous

    • Follows mother, while on the phone with her then nine-year-old son, suggested he asked his stepmother about her former husband and deceased daughter.
    • Mother left messages with father’s stepdaughter claiming that husband had admitted several affairs with other women he had placed the new wife at risk of contracting AIDS.
    • Mother denied Fathers court-ordered possession of the party’s child on his eighth birthday.
    • Mother faxed a letter to father informing him that their child could not have a birthday party because father had insisted upon his court order birthday visitation.
    • Mother denied father access to his children.
    • Mother blocked father’s vehicle in her driveway and scratched it with her keys.
    • Mother placed over 100 embarrassing phone calls to father’s home after the divorce, including hitting up calls.
    • Mother put the three children in the middle of the disputes.
    • Mother would “bad mouth” father to the children.
    • Mother taunted Father with threats of taking his children to another city.
    • Mother confronted stepmother and the children and called her a Bitch and accused the children of stealing their park passes.
    • Mother refused to let the children play sports.
    • Mother called the children at Father’s house during his visitation with the children.
    • Mother did not allow the children to go to the Alamo dome with the father.
    • Mother faxed two messages to father: about his tardy return of the children after his visitation, and then that only stepmother had to worry about where he is sleeping.
    • Mother failed to immediately give father the children ski clothes as he requested
    • Mother did not disclose the location of the children’s savings bonds.
    • Mother gave Father only a few days’ notice of his son’s first communion.

    So as these are some examples of outrageous behavior and other behavior that although is offensive it is not to such an extent that the courts have determined that it constitutes a cause of action under this provision, this tort that one may bring which is the intentional infliction of emotional distress.

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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.