Difference Between Alienation of Affection & Criminal Conversation 19

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.

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Discussion

  • M. Siddiqui

    I have been living in North Carolina for over a year for a job. My wife continues to live in Oregon in my home. I recently found out that she has been carrying on an affair with a man in Texas for many years. I have evidence dating back to 2007 till current time.
    Can I sue for alienation of affection in North Carolina?
    Can I file for fault divorce in North Carolina as well?
    What would be the best course of action?
    Thanks

  • Jfed

    I’m currently talkin to a woman who has been separated for three months. I live in Mississippi , we have the alienation law and we want to avoid it. She is currently waiting on him to file like he said he would. What do I do?

    • Jess

      Is there a reason that She does not file, except that she is waiting for him to file? If neither of them file, I would not waste my time or risk being sued. You might miss out on a better opportunity. Believe me, I have been there!

  • dlocke

    My husband committed adultery,and i would like to know can i file suit against the woman who was in my house my niece was present at the time she saw this woman do something her and my husband was drinking, but my husband was not drunk til this woman poured liquior into his cup after she had did that my husband started falling all over the place i was told that i can file suit against her for intentional infliction of harm please help i live in Hawaii and i was told that we have the alienation of affection law so can i sue her?

  • cwar

    I live in north carolina. My husband and I live in separate homes because we decided to separate. We did not file documents because we were talking about working on the problems with our marriage and continue to remain intimate until I found out he was spending weekends with another woman. He took her out on several dinner dates and would sometimes take our son as well. Can I sue for alienation of affection?

  • Lanette

    My husband left me for another woman after 26 years of marriage. He took me to court trying to get out of payiing alimony. He claimed that I had put us in great debt several times during the marriage. He had no prroof at all. The judge was moving from one court to anoother and requested that our lawyers sum it up within 4 pages. He then made a priliminary judgement and aklklowed both sides to send any documents oon and and all unleft concerns. My lawyer would not send in any of my dcuments. I don’t know why. I paid her $44,000 and I could not get her to do as I required her too. The judge made his final judgement signed and filed. I want to know If I can reopen my case with the same judge and the same court or do I have to open a new case? Do I do this in familu law or do I take out a civil case based on my ex’s fraud and purjury? I have all documents proving all of it. The judge gave me alimony since I am disabiled. However, the judge is making me take on the debt from when we were married. My ex had no proof and I have all the proof showing it was mutual debt. Plus California is a no fault state. I never got a chance to be heard because the judge closed it down. How legal is that? What can I do legally to my lawyer ? I have kept every letter and documents betwwen the two of us and can prove she went against my will. Please advise. Thank you.

  • skarlett10

    My husband of 7 years and friend and lover for over 13 has decided to leave me for a married woman who knew he was married and should have left him alone. She took 13 years of my life I want something in return. I still love my husband. She is married as well and has already filed for a divorce. I live in Tennessee can I sue her for destroying my marriage?

  • Veryhurt

    I have been married for 7 months and recently left Iowa after only being there 8 months. My husband was caling his case manager that he had been involved with while I was away working. He also works in the same hospital as her. I have phone records proving their conservations with the longest one being 86 minutes at 1:13 in the morning. I also have pictures of the two of them together along with screen shots of comments she made while online. I also had no idea that he was impotent. He had also clamied to have money and rental income that has since been a lie also. He sent me a picture of a bank statement that now he says was only a joke. Can I get an anullment? What would be the best thing for me to do? He has been a resident there for 16 years. Can I file a couterclaim if he files for divorce?

  • Wayne Thompson

    can my wife receive any part of the home that I brought to the marriage and she has never worked outside the home or contributed any financial assistance to the home located in the State of Missouri?

  • shirley means

    I live in the state of Alabama and my husband of ten years filed for a divorce in 2011. He bought a home in Mississippi 2007 without my knowledge, and five months later put his mistress name on the deed in along with his name in the same year. I know the state of Alabama does not recongize the alienation of affection law suit, but it must be something I can do to punish her for what she did to my marriage.

  • heartbroken

    my wife and i have been seperated since feb 2011 due to problems in our marriage which started over her admitted affair.now she is telling me she has a “friend”.can i file for divorce and sue her monetarily over her past and present adultery?i live in georgia.

    • Dorothy Bentley

      I am currenty suing for divorce after 36 yrs of narriage due to adultery on part of my spouse. He has been living with the woman for 3 yrs. She worked with him while we were married and I have since found out that after her being laid off as his assistant that she continued to pursue him. When I becane seriously ill my husband moved me into our RV at a local campground and moved her intoour house. Can I pursue her in civil court for sexual relationship with my husband during last 3 yrs of our marriage resulting in our divorce along with loss of RV, car abd house as she did not help with his expenses. He spent money supporting her rasther than providing for me.

  • charlie

    I want separation from husband if possible, we’ve been married 5yrs. togather 7yrs. he’s supporting ex girlfriend’s son thats not his and it really upsts me,especially when we’re not reallystable. before marriage that was the agreement we made ,That I dont want her in our lives. My husband has been taking care of him the whole 7yrs. I’m sick of it to painful ,want out help!

  • bronken heart

    my husband and i been married for 30 years now. i have now about this women now for 12years. i have been trying to keep my family together.my sons no about the women. there is hope at times for us. and then he just pick up and leaves to her. and then my world falls apart. i cant work. i cant sleep. my mind go crazy. i wont to hirt myself. my husband no with this does to me. i have please to women to stay away from my family.and she wood say never. my husband thinks that she is best thing. i no i should have life him. but i cant i still love him. iam at point that this is making me sick. my mind havehad brake down. i dont care to live anymore. please help me tell me with to do. thank you

  • cass

    if my hubby and i got married and he is still carryin on with his gf is there grounds for anything becasue she is still callin him and i confronted her and she sed its all him and when i confronted him he said it was her. i live in sd and i just am hurt by it all because we have a child together and that i took my marriage very seriously and im just wondering what i can do

  • Annie Johns

    My husband of 30 plus years has been carrying on with another woman for over 3 years. He has told me that she was out of picture over 2 years ago and then just recently I found out that this is not true at all. He now tells me he has just been riding along until things fell into place for him. I am the main financial supporter to our family. I make 3x’s as much as him. I have requested in writing three times to this other woman that she please leave my husband alone and move on; however, my husband now says that he wants to be with her, all this after all the things I have been there for with him. I live in NYS, what are my rights? Do I have any rights to sue this woman? She is a nurse and I have reminded her many times of the oath she took of “do no harm to person or family.” My children know about this now and they are completely devested. Three children and four grandchildren mean nothing to him or her. Comments? Suggestions? Need help!!

  • What 2 do next

    About 6 months ago I found out my husband of 6yrs has been carring on a friendship (lol) I was being convinced that was just a bowling buddy and they were just on a team together and that was it! I was made to feel that it was silly for me to think it was more. About 6 months ago I had him followed and he was seen outside the bowling alley reaching in and kissing her. We seen counciling he voiced it was not an affair the counselor corrected him and explained to him it was. Anyway he agreeded he would stop all phone calls and quit the team. Which I trusted was done , he did change teams but now he is back calling her from the phone bill. Can I sue her for allienation of affection?

  • Jennifer

    If you were getting into the “swinger lifestyle” and had an agreement not to do anything without the other and he did can I still sue? He just turned 40 and left me for a 23 year old. But was doing things on his own without me because he didn’t want to be with someone my age, he is in a closed relationship now.

  • Sharlet Espach

    I need to file an Alienation of Affection lawsuit, would like to do it on my own. I have the phone calls, text and pictures to prove my case. Where can I get the papers to file the suit without using a lawyer.