Legal Rights: Divorce, Cheating and STDs

    Your spouse goes away to Asia on a long business trip. You hope that your spouse will bring back a gift for you when he or she returns. 

One woman recently received an unexpected dangerous gift from her husband and she is "mad as Hell, and she is not going to take it any more." An investment banker husband travels to Asia on business, has sex with hookers, and returns and infects his wife with a sexually transmitted disease (STD).  He admits to his wife that he has had unprotected sex with commercial sex workers on a number of occasions in Japan and China and that he also has a mistress on the side in the United States. 

Is there a lawsuit? Oh yes, there is a huge law suit in which the wife files for divorce and sues her husband for $25 million. At best, this is painfully emotional for each party. However, it does not take a great imagination to understand the additional immeasurable devastation that one would experience when he or she is informed that they have been infected with an STD by an unfaithful spouse. 

As expected, the wife is devastated emotionally by her husband's actions and the disease that he has inflicted upon her and that she will carry with her the rest of her life. A  wife has had  to endure a number of operations and she has had to interrupt her career. She is claiming damages for breach of trust, loss of heath, loss of income and other claims. 

Lawsuits involving transmission of venereal diseases are considered a form of a personal injury claim and may be based on the concepts of battery, fraud or negligence. In addition, some courts have held that because the relationship between a husband and a wife is a special confidential relationship. The marital relationship imposes a duty upon the infected spouse to disclose his or her disease to the other. In addition, a number of states make it a crime if you do not inform any one with whom you are having sex that you have an STD. 

A defense that the philandering spouse can raise against such claims is that he or she did not know that he or she  was  infected with an STD. However, given the admissions by lover boy in this case, it does not appear that he will be successful in using this defense. If you are going through a divorce, most states require you to bring forward any other claims that you may have against your spouse, such as negligence, battery, personal injury claim, harm from domestic violence, or other civil claims. 

If you fail to litigate these claims in the context of your divorce, then you waive your right to litigate that claim against your spouse after the divorce. Consequently, it is extremely important that you inform your attorney at the beginning of every divorce about every claim that you believe. Even if the wife pleads this claim in her divorce petition, she can still request a jury trial on this issue. 

It is unlikely that this case will go to trial. The evidence against the wayward husband appears to be strong. In addition, it also is unlikely that the husband will want to "air his dirty laundry" in public about his Asian sexual escapades, his unfaithfulness and his STD. Besides, he may be considered by the jury to be a slime ball. If so, then the jury may subconsciously decide to punish him and award the wife far more than she is asking. 

Clearly, it is in his best interest to settle this case quickly. 

Charles Jamieson is a family law attorney who has represented clients in divorce cases in more than 20 states. He has practiced law for 26 years and is located in West Palm Beach, Fla.