Can I Sue My Ex-Spouse for Emotional Distress After a Divorce?

It depends on the circumstances

By Kimberly Lekman, Esq. | Reviewed by Canaan Suitt, J.D. | Last updated on March 31, 2023

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When couples divorce, emotions can run high, and things can turn ugly. Both parties might say and do things they will later regret. However, some actions are so outrageous that you might be able to sue your ex for emotional distress.

Recovering financially for emotional distress is not an easy feat. You will need to show that your former spouse (the defendant) behaved in an outrageous manner that caused you severe emotional harm. Your spouse’s conduct might have been wrong and hurtful, but it still might not be actionable legally. Further, state laws vary widely on this issue.

If you think your spouse’s conduct was so egregious that you might have a valid legal claim, it would be wise to contact a skilled divorce attorney as soon as possible. In the meantime, this article will give you an overview of what makes a successful emotional distress claim.

Was It Intentional Infliction of Emotional Distress?

Although your ex-spouse’s conduct may have felt unreasonable and insensitive, this alone is not enough to bring a lawsuit against them.

However, suppose your former spouse was physically abusive to you and your children or otherwise behaved outrageously. You might have a solid case to sue emotional distress in those instances. You might need to bring criminal charges, too.

Following a divorce, most emotional distress claims are based on the legal concept of intentional infliction of emotional distress. In some states, you might also be able to argue negligent infliction of emotional distress.

Negligent infliction of emotional distress is a separate cause of action and often applies to situations where someone witnessed the maltreatment of someone else. An example of this might be if you witnessed your spouse committing domestic violence against a loved one.

However, some states do not even recognize negligent infliction of emotional distress as a valid legal cause of action. Therefore, you will probably need to claim intentional infliction of emotional distress. Of course, you should report any actions that rise to the level of criminality to the police immediately.

To succeed in a claim for intentional infliction of emotional distress, you usually need to show all the following:

Extreme and Outrageous Conduct

This is a high bar to reach. Insults or impoliteness are not considered extreme and outrageous.

For behavior to get to this level, it must go beyond all bounds of decency. It must be so atrocious that people in a civilized society do not accept it. For example, the South Dakota Supreme Court ruled that a wife could sue her ex-husband for emotional distress after he kidnapped and raped her. Plausible threats of violence can also rise to the level of extreme and outrageous conduct that no reasonable person would tolerate.

If your ex-spouse’s actions make you fear for your safety, you should contact the police and seek legal services immediately. You might also have a civil claim for intentional infliction of emotional distress.

Recklessness or an Intent to Inflict Distress

This element pertains to the defendant’s state of mind.

They must have reasonably known that their conduct would cause severe distress, or they must have intended to cause the distress.


The emotional distress must be severe.

This is a vague standard to meet. Evidence of severe emotional distress might include ongoing anxiety or stress. If you sought psychiatric care or therapy, this could also be evidence of severity. It might be easier to prove severity in your case if there was a physical manifestation of the distress.

Physical evidence of emotional turmoil might include insomnia, headaches, ulcers, difficulty eating, and others. You should document these symptoms if you have them. In some instances, the defendant’s conduct might be so extreme that the jury can easily assume that severe distress would result.


The outrageous conduct must have caused severe emotional distress.

If you satisfy the other three elements of this cause of action, you will likely have solid evidence of causation too. The exception would be if the defendant can claim that you suffered distress from a previous event. They might then argue that your emotional symptoms were caused by the earlier occurrence, not their actions.

A skilled family law attorney will know how to contradict this counterargument.

Evolving Law and Your Claim’s Validity

Evolving case law or new statutory rules can shift quickly.

Therefore, the laws in this area are subject to change and vary widely. So, what might not have been a valid case several years ago might now be a strong claim. Your claim’s validity and the time limits on your ability to sue (the statute of limitations) are governed by your jurisdiction’s laws.

It would be best if you contact an experienced divorce attorney to assist with this complex legal issue.

How Can an Attorney Help?

An experienced family law attorney can evaluate your emotional distress case and estimate its value. Based on their evaluation, your attorney can give you legal advice on whether it will be worthwhile to pursue the case.

You might also want to ask whether your attorney has experience representing divorce cases that include an emotional distress claim like yours. If they do, you can ask how the cases concluded and whether you could expect a similar outcome.

If you decide to move forward with your emotional distress claim, your attorney and their law firm staff will gather evidence, file paperwork, and give you legal advice as your claim progresses. If your case succeeds, you might be able to collect financial reimbursement for the medical bills and pain and suffering you incurred due to the defendant’s actions.

Your attorney can also help you work out a fair divorce settlement with your ex-spouse and guide you through the entire divorce process.

Depending on your situation, your divorce settlement might cover issues such as child custody determinations, child support, alimony, and more. These issues can be highly emotional, so it’s essential to have an excellent attorney-client relationship. It would be best to choose a divorce lawyer you like and trust because you will be sharing many details of your personal life with them.

What do I do next?

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