Claim for Damages between Spouses
Claim for Damages between Spouses
In a divorce case, the innocent spouse may claim damages against the other spouse if the claim for divorce is based on the other spouse's bigamy, cohabitation with a third person in the name of husband and wife, domestic violence, maltreatment or desertion of family members, or any other major fault.
Such damages include economic damages and emotional distress damages. This means that the innocent spouse may obtain all or a bigger share of their community property, or claim additional payment of damages by the spouse who was at fault in their marital relationship.
If emotional distress damages are claimed, the court will make a decree in accordance with the Supreme People's Court's Interpretations Pertaining to the Determination of Damages for Mental Distress, considering the following factors:
1. the severity of the fault of the tortfeasor;
2. the means, place, mode, and other aspects of the tort;
3. the consequences of the tort;
4. illegal profit, if any, obtained by the tortfeasor from the tort;
5. the affordability of the tortfeasor; and
6. the average standard of living of the place where the court is located.
It should be noted that the following rules should be complied with in a divorce case involves damages.
Innocent spouse as the plaintiff
If the innocent spouse files a divorce case, and intends to claim damages based on the fault of the other spouse, the plaintiff should make a claim for damages in the same divorce case. The case will not be admitted or will be dismissed if the plaintiff files a case claiming damages without a claim for divorce. And the claim for damages may be sustained only if divorce is granted.
Innocent spouse as the defendant
If the innocent spouse is the defendant in a divorce case, the claim for damages will be settled as follows:
If the defendant does not agree to divorce and fails to make a claim for damages based on the fault of the plaintiff in the divorce case, a separate lawsuit may be filed to claim damages;
If the defendant fails to make a claim for damages in the first instance, and makes a claim for damages in the second instance, the court will mediate the case. If mediation fails, the defendant will be notified to file a separate lawsuit to claim damages, unless both spouses agree to have the claim adjudicated in the second instance, in which case the court of second instance will make a decree, consent decree, or mediation agreement.
Claim for damages after divorce registration
If a divorce spouse files a lawsuit to claim damages based on the fault of the other divorced spouse after they have completed the divorce registration procedure with the marriage registration authority, the case to claim damages will be admitted by the court unless the innocent spouse expressly waives the right to claim damages against the other spouse in their divorce agreement.
Robert Zhang 
Steve Li 