Divorce and STDs: Playing Russian Roulette with Your Health & Wallet

Divorce and Sexually Transmitted Diseases: Keeping Them Out of Your Marriage

Divorce and Sexually Transmitted Diseases: Keeping Them Out of Your Marriage

Dealing with the possibility of contracting a sexually transmitted disease from a cheating spouse before filing a Tennessee divorce. Part 3 of a 3 part series on Cheating.

Divorce Because of a STD

While you’ve undoubtedly read that one out of every two marriages will end up in divorce, this statistic is based on a national average. The divorce rate has been declining for the last twenty years. The problem is that Tennessee and much of the South has a higher-than-average marriage rate, and consequently, it has a higher-than-average divorce rate. The good news is that the divorce rate in Tennessee has dropped substantially since 1990, from an approximate 6.5 per thousand people to an approximate 3.9 per thousand people, as reported in 2009.

The existence of a sexually transmitted disease (STD) caused by an unfaithful spouse can make your divorce more costly and difficult if you are the unfaithful spouse. Approximately 1 in 5 people in the United States have some type of STD. This ratio is not spread out equally among all age groups but is surprisingly concentrated in the under-twenty-five demographic and in the over-fifty demographic. The STD rate is increasing among all age groups but it is more common in these two age groups. In the over-fifty group, the increase is partially due to the belief that warnings about STDs are targeting younger people, although this belief is mistaken. Failure to use condoms and having multiple sexual partners are primarily responsible for an increase in STDs in all age groups.

Facts about STDs and how to keep them out of your marriage

In order to keep STDs out of your marriage, you have to have a monogamous relationship throughout the marriage. The problem is that cheating in a marriage has been shown to be fairly common. Statistics vary, and cheating has been listed as anywhere between 30 and 60% of marriages, which is by no means an accurate account of how many marriages are affected. We do know that there is infidelity in many marriages, but many instances of infidelity will go undetected. This makes the total percentage of cheating in a marriage unreliable because of all the undiscovered instances of cheating. Men are more likely to cheat than women, although not by a large margin. Office romances are common, and usually the paramour is someone the husband or wife knows. The Internet has made it easier for people to be unfaithful or to be emotionally unavailable to their spouse. The spouse using the Internet or chat rooms for companionship may have already “checked out” of their marriage.

The problem with cheating is that contracting STDs is a known risk, and STDs often go undetected until serious symptoms appear. There are approximately 20 million new cases of STDs diagnosed in the United States each year. Interestingly, southern states have more than its fair share of the nation’s millions of STDs, with Tennessee ranking in the top ten for syphilis and chlamydia. Genital herpes is an STD that, like other STDs, knows no boundaries and is found among people of all religions, races and economic backgrounds. It does not discriminate.

There is a clear need for STD testing, as many people with STDs are unaware that they have it. If you have been involved in extramarital affairs or if you think your spouse has been, it is wise to get tested immediately for all types of STDs, not just HIV. For more information, including testing for genital herpes, check www.mayoclinic.com and search “STD testing info.” See your doctor for testing, and get a follow-up test in six months or as your doctor suggests. Immediate treatment for STDs is recommended because STDs can get progressively worse, and some can cause cancer or other severe symptoms. Many doctors will recommend that you get tested if you’re married even if no infidelity is suspected. If you test positive for an STD, make sure to get emotional support or counseling. This isn’t something you can ignore, and failing to get a support system in place could make things more difficult to deal with. If you contract an STD and you believe it’s from an unfaithful spouse, contact your family lawyer for advice. Create a plan of action which could include trying marital counseling, reconciliation, or divorce. Denial or “looking the other way” is not going to solve anything, as any infidelity will not suddenly stop on its own.

If you’re infected with an STD, you can spread infections even if you are unaware that you’re infected. If you are aware that you’re infected, then you have a duty to disclose this to your spouse or you will find the law in Tennessee will not be on your side. If you are the victim in this situation and have contracted an STD from your spouse, you can sue your spouse as part of your divorce case. You may also be able to sue your spouse in a separate personal injury case for negligently infecting you with the STD.

Can I sue my spouse for giving me an STD?

In the case of Cardella v. Cardella, No. M2007-01522-COA-R3-CV (Tenn. Ct. App. Sep. 17, 2008), the Court of Appeals in Nashville, Tennessee dealt with a divorce case where the wife contracted an STD by her husband. The wife contracted genital herpes, which the husband denied, although the trial court believed that the husband had sexual relations with other women during the parties’ marriage. The court stated that the wife needed to prove that: 1) the husband had a legal duty to the wife which was violated, and 2) that the violation of this duty was the cause of her contracting genital herpes. The trial court listened to testimony, which is not always the case in negligent STD cases; sometimes the parties do not want to air their “dirty laundry” to the court and try to settle without going to trial. In cases where there is a complete denial by the offending spouse, the case will have to go to trial.

In Cardella, the wife was 30 years old at the time she contracted genital herpes. The trial court had awarded her $288,000.00 based on her life expectancy and based on the cost of medication and doctors’ visits to manage the herpes. The appeals court agreed that the trial court had made the right decision and allowed the award of $288,000.00 to stand.

A prior case in Tennessee, Hamblen v. Davidson, 50 S.W.3d 433 (Tenn. Ct. App. 2000), was not a divorce action — it was a personal injury lawsuit by the wife against her ex-husband for negligently infecting her with the virus which causes genital herpes. This case was heard by the Court of Appeals in Jackson, Tennessee in 2000.  The appeals court sent the case back to the trial court for a jury to decide whether the husband’s infidelity in addition to genital rashes were enough to alert him that he had an STD. If indeed he should have known this, then he owed his wife the duty to prevent her from getting the virus. Because of the unanswered question as to whether the husband should have known, the Court of Appeals sent the case back for the jury to listen to testimony.

Many states are now allowing negligence claims for STDs

Since 1990, cases where spouses sued for contracting STDs started appearing more frequently. Not every state allows this action, but many states are starting to allow lawsuits by spouses and by unmarried sexual partners for negligent infliction of STDs. Other states require the injured spouse to prove that the other spouse or sexual partner intentionally exposed her to an STD. The law appears to be in its infant stages in cases of STDs. It is likely that new STD cases will appear in many states. Tennessee, as well as other states, most likely will learn from these cases or follow their holdings. Other states may decide to follow Tennessee’s case law.

Cases holding that a spouse or unmarried partner may sue for negligent infliction of an STD can be found in Tennessee, Louisiana, Alabama, Ohio, Michigan, Georgia, New York, Texas, California, Wyoming, North Carolina and Minnesota, to name a few. In a case in Maine, McPherson v. McPherson, 712 A.2d 1043 (Me. 1998), the Maine Supreme Judicial Court would have allowed for a negligence claim in 1998 if the wife had been able to prove that the husband knew or should have known he was infected with an STD. Indeed, it is anticipated that cases on the subject of STDs between married or unmarried people will continue to be brought in all fifty states, although some states may require the intentional exposure to an STD instead of the lesser negligence standard.

If a claim of negligence is allowed, proof of money damages will be crucial

It is not enough for the injured spouse to show negligence by the other spouse after having an affair with someone infected with an STD. The injured spouse must also prove money damages or the award will be small. In the Tennessee case of Cardella v. Cardella, the wife was entitled to $288,000.00 in damages because she was able to show her estimated life expectancy, the cost of her medication, and the cost of her visits to the doctor. Injured spouses (or partners) will have to prove money damages in order to collect them. The amount of damages awarded by courts is all over the place; there is no specific pattern to the awards and no specific formula. In Meany v. Meany, 639 So.2d 229 (La. 1994), the Supreme Court of Louisiana upheld a finding in 1994 of negligent infliction of an STD (herpes virus), but lowered the award from $125,000.00 to $93,676.00 because it could not agree that the wife showed she also contracted HPV from her husband.

In other cases, people have sued for millions of dollars, but it remains to be seen whether courts will award that much money. An injured spouse probably will have to prove such things as loss of enjoyment of life, cost of medication and doctors’ visits. Courts will have to estimate what dollar amount to put on a spouse’s pain and suffering, and there is usually no set formula for such injury.

If you are a wife who believes you have contracted an STD from your husband, make sure to see a doctor for immediate attention. Your next move is to get a family lawyer if you will be filing a divorce. Inform your family lawyer of the STD and that you believe your husband caused the STD to you. The same advice applies if you are the husband. Make sure you see your doctor immediately and then look for a lawyer who is knowledgeable about these types of cases. If you take a chance by having an extramarital affair, remember that not only could your health suffer, but your finances could be hit just as hard.

References, Resources and More:

 

Topics

Copyright © 2024 Miles Mason Family Law Group, PLC   - Disclaimer