Believe it or not, there are seven states–Illinois, Mississippi, New Hampshire, New Mexico, South Dakota, Utah and North Carolina–which have not abolished two ancient laws called Alienation of Affection and Criminal Conversation. The other 43 states abolished the laws, which originated in England in the 1800s.
Criminal Conversation is a law which allows the betrayed spouse to sue the other woman (or man). The plaintiff has to prove the following:
- An act of intercourse,
- The existence of a valid marriage between the plaintiff and the adulterous spouse,
- The bringing of the lawsuit within the applicable statute of limitations.
The only possible defense would be proof that the plaintiff consented to the sexual relationship before it took place. North Carolina, for one, requires a period of separation of one year before married couples can file for divorce! During that year, if either spouse has sex with anyone else, that person can be sued by the other spouse unless it can be proven that the separation was intended to be permanent (and how do you prove that?)! Get this–THE OTHER WOMAN CAN BE SUED EVEN IF SHE WERE NOT AWARE THAT THE PERSON WITH WHOM SHE WAS INVOLVED WAS MARRIED! That alone speaks to the absurdity of the law!
Alienation of Affection is another law which allows the betrayed spouse to sue the other woman (or man). To succeed, the spouse does not have to prove extramarital sex. She does, however, have to prove the following:
- The marriage entailed love between the spouses in some degree,
- The spousal love was alienated and destroyed,
- The defendant’s malicious conduct contributed to or caused the loss of affection.
The plaintiff does not have to prove that the defendant intended to break up the marriage–only that she intentionally did things that would affect the marriage. Unlike Criminal Conversation, if the other woman is not aware of the fact that the person with whom she is involved is married, that is a defense against a case of Alienation of Affection. If the defendant was not the pursuer, the plaintiff might not be able to prove intentional or malicious action, which could be a defense.
Supporters of these laws contend that they are an effective way to protect the institution of marriage by punishing the “non-spouse wrong-doer” by ordering monetary compensation to be paid to the spouse of the cheater.
So for clarity, I’ll reiterate that these laws provide the right of the spouse of a cheater to sue the other woman (or man) for having sex with her spouse, and/or for causing him to stop loving her. WHAT’S WRONG WITH THIS PICTURE? The cheater is not punished in these scenarios! In divorce proceedings, the judge might award the wronged or betrayed spouse a higher settlement, but in some states, that is limited by the equitable distribution law.
So the cheater wreaks havoc all around, causing another person to be sued for his infidelity, and he walks away practically unscathed! This makes no sense! If these people are concerned about protecting the sanctity of marriage, why are they not punishing the cheater, rather than the person he is cheating with?
If you live in one of the states mentioned above, you’d better be extremely careful about the person with whom you get involved, because if you aren’t, you might end up with a judgment against you! If you have any legal questions, please consult with an attorney.