Home-wrecker Laws: Alienation of Affection and Criminal Conversation

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When your marriage has ended and you discover that it is because your spouse has had an affair and/or has fallen in love with someone else, you may be tempted to seek revenge against the person who has “stolen” your spouse’s affections. Before you race off to court, you should check the laws of your state regarding these types of claims, as well as their success rates.

In a small minority of states, a spouse may sue a third party for willfully and maliciously interfering with the marital relationship. This interference results in winning away the love of a husband or wife from his/her spouse. This suit is usually brought against the adulterous spouse’s lover. Although, the statutes also allow for these claims to be filed against an in-law, relative, counselor, therapist, or clergy member who has talked the spouse into leaving the marriage. This type of claim is part of tort law, and is known as alienation of affection.

Criminal conversation is a claim closely related to Alienation of Affection. It is basically a civil claim for adultery, formally known as “seduction”. Unlike Alienation of Affection, it is not necessary to prove that the offending party acted with malice or that the adultery had any effect on the marriage. Adultery must be proven in a criminal conversation claim, though; whereas that is not required in an Alienation of Affection claim.

These types of claims are commonly referred to as “heart balm” torts because of the loss for which they seek to provide recovery. A balm heals, soothes or lessens pain. These torts seek to provide a balm for the pain to the heart caused by an individual’s actions that affected another person’s marriage. They may allow for recovery of monetary damages to compensate for the emotional distress related to the loss of affections, services in the home, support, separation from the spouse, and divorce, as well as humiliation and mental anguish.

Historically, heart balm torts were civil wrongs that stemmed from the antiquated laws that deemed a wife the personal property of her husband. These causes of action were originally only available to men, and allowed the husband to sue the man who deprived him of his conjugal relations with his “property”.

Most states hold that a legal claim founded on a principle which is no longer viable should be abolished. There are some people, however, who argue that these torts help to preserve the sanctity of marriage, provide the injured spouse with a non-violent remedy to challenge the offending third party, and reinforce the state’s public policy to protect marital rights. The arguments that these torts help to preserve the marital relationship is certainly debatable, though, since they are almost always filed only after the marriage has been irretrievably broken, or already dissolved. Instead, these torts seem to be motivated more by revenge and retribution.

Today, most states have abolished heart balm claims. Only Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota and Utah still recognize either of these causes of action. And even in these states, there are usually heat balm statutes that limit the amount the injured spouse may recover. Illinois prohibits non-economic damages like pain and suffering, and punitive damages. In New Mexico, although the tort has not been abolished, the courts have expressed dissatisfaction with the filing of these claims. South Dakota does not permit insurance coverage for alienation of affection lawsuits and limits punitive damages.

North Carolina and Mississippi have long been the exception. And although, the state legislature has repeatedly tried to abolish these types of claims, North Carolina remains the leader for the number of heart balm lawsuits filed and the amount of damages awarded. This may soon change, however, since North Carolina enacted new legislature in 2009 which placed some additional limits on these types of lawsuits.

To prevail in an alienation of affection claim, the plaintiff needs to prove the following:

• Love between the married spouses existed prior to the onset of the extra-marital relationship;
• The marital love was alienated and destroyed as a result of the relationship with the third-party; and
• The defendant’s malicious conduct contributed to or was the cause of the loss of affection.

The defendant in these cases may be able to defeat the claim if she/he can show that he/she didn’t know the adulterous spouse was married; he/she was not the active aggressor in the relationship; or that the adulterous spouse was so unhappy in the marital relationship that it belies the claim that love between the spouse existed prior to the extra-marital relationship.

Because most states have abolished alienation of affection lawsuits, some aggrieved spouses have tried various other civil actions to seek revenge. The most common substitute is Intentional Infliction of Emotional Distress (IIED) claims. To prevail in an IIED claim, the plaintiff needs to prove the following:

• Intentional or reckless conduct;
• Extreme and outrageous conduct;
• That the emotional distress was caused by the wrongful conduct; and
• That severe emotional distress was evident.

Courts are still hesitant to award damages in an IIED claim in the marital context. It is certainly not enough to simply claim that the offending party’s actions in stealing away the plaintiff’s spouse shows extreme and outrageous conduct. Instead, the plaintiff must prove that the defendant actually showed other, specific conduct towards the plaintiff that attained the required level of extreme and outrageous.

The irony of these claims is that the third party is the one who is almost always sued. However, it is the unfaithful spouse who had originally sworn fidelity to the injured wife or husband, not the third party.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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