Infliction of Emotional Distress: 

Does My Divorce Qualify?

My family law professor once said something along the lines of “when it comes right down to it, all divorces involve emotional distress.” Your former lover, confidant and best friend disappears, both physically and emotionally. It is against this backdrop North Carolina law defines marital fault, such as abandonment and illicit sexual behavior, which are based on the legal relationship between the two spouses. In contrast to marital fault alleged between spouses, a tort is a general civil claim filed by anyone, based on behavior that is wrong or negligent. The infliction of emotional stress is a tort.  

The Tort of Emotional Distress

Negligent infliction of emotional distress occurs when someone negligently causes severe emotional distress by his or her extreme and outrageous conduct. To meet the standard of inflicting emotional distress, the person’s conduct must exceed “all bounds usually tolerated by decent society.” Although divorces almost always involve emotional distress, the key is the extent of the conduct, which must be far greater than that encountered in a typical divorce. The conduct is negligent if the person did something that caused the victim to be severely distressed, when the person should have reasonably expected that result from the conduct. Wilkerson v. Duke, 748 S.E.2d 154 (2013).

Extreme and Outrageous Conduct

For divorce-related cases, the standard of proving “extreme and outrageous” behavior is a high one. One example of how bad the behavior must be is Miller v. Brooks, et al., 123 NC App. 20 (1996). In that case, the ex-husband sued his former wife for numerous claims, including infliction of emotional distress. After they separated and were living in separate residences, they signed a separation agreement awarding their home to the ex-husband. Although they then tried to reconcile for a few days, they were unable to do so.

A year after the effort to reconcile failed, the ex-wife met a locksmith at the ex-husband’s house to have a key made. About two weeks later, she used the key to allow third parties to invade his home without permission to install a hidden video camera in the ceiling of his bedroom. The video surveillance captured the ex-husband in the shower, getting undressed and doing various other things. Worse, she knew her ex was a fearful person when she did these things. In fact, the ex-wife specifically told the third parties who helped her install the video camera that her ex was so fearful that he “slept with a loaded shotgun next to him.” The ex-wife also intercepted his mail at the post office, opened it and disposed of some of it, and put the remainder back into his mailbox.

Kroh v. Kroh, 152 NC App. 347 (2002). NC Gen. Stat. § 50-16.1A