When discussing civil lawsuits over adultery, the legal claim known as Criminal Conversation is generally lumped together with another legal claim called Alienation of Affection. Both legal claims have fallen out of favor over the years in most states. In fact, only seven U.S. states still allow alienation of affection and criminal conversation lawsuits – Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. In both types of lawsuits, the defendant is a third-party and not one of the spouses in the marriage.

Although the two legal claims are very similar and are often brought together in the same lawsuit to maximize the possibility of liability and recovery, they do have different elements.

Criminal conversation is the name for a civil (not criminal, as the name implies) lawsuit requires the plaintiff to allege and prove the occurrence of sexual intercourse between the defendant and the plaintiff’s spouse – adultery. If the plaintiff can prove (1)the existence of a legally valid marriage and (2) sexual intercourse, the only possible defense can be that the plaintiff and his or her spouse were separated with the intent that the separation be permanent (even a temporary separation will not be a defense) or that the plaintiff consented to the intercourse between spouse and defendant.

An action for alienation of affection does not actually require proof of extramarital sex (opening the door to suits against those who engaged in an “emotional affair” or those who otherwise encouraged the demise of a marriage). There are several additional elements, however, that make the claim a difficult one to prove. To prove an alienation of affection claim, the plaintiff must show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection.

Plaintiff does not have to prove that the defendant intended to destroy the marriage, only that the acts would foreseeably impact the marriage. It is, therefore, a defense that the defendant did not know the plaintiff’s spouse was married. Additionally, prior marital problems might establish a defense to an alienation of affection claim if spousal love had already been destroyed.

Because an alienation of affection claim does not require proof of sex, the defendant does not even need to be a romantic interest of the plaintiff’s spouse. It could theoretically be anyone who has counseled, suggested and/or encouraged divorce – including a therapist, a clergy member, a friend or a relative.

Recoverable damages in both alienation of affections and criminal conversation cases can include compensation for loss of services in the home, loss of consortium (spousal sexual relations), loss of support, including present and future income of spouse, and emotional distress.