A prior posting, discussed a developing area of law for Maryland Divorce Lawyers resulting from the abolition of interspousal tort immunity in the 2003 opinion in Bozman vs. Bozman.

In the 2010 opinion in Lasater vs. Guttman, various theories of tort liability (conversion, intentional infliction of emotional distress and fraud and breach of fiduciary duty) raised by wife were rejected on summary judgment and upheld on appeal.

“ The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship.

Perhaps the most instructive section of the opinion relates to wife’s claim based upon husband’s depletion of the parties’ marital assets over decades while she occupied a position of trust and confidence in him.

The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship. Absent an agreement that actually establishes a fiduciary relationship, for example creation of a partnership, husband and wife will not have a fiduciary relationship. On the other hand, a confidential relationship may be proven to exist, although it is not presumed. The proponent of a confidential relationship must show that he or she was justified in assuming that the other spouse would not act in a manner inconsistent with his or her welfare. Among the factors to be considered are the age, mental condition, education, business experience, state of health and degree of dependence of the spouse in question.

A confidential relationship may be used as an entree to setting aside a particular transaction such as an oppressive separation agreement. However Lasater vs. Guttman makes it clear that it cannot be used to vindicate a history of financial wrongs occurring during the course of a marriage. Such wrong doing will not become an independent cause of action. It will remain only one of many factors subsumed into the equity courts decisions about marital property and spousal support.