When you find out that your spouse has cheated on you, it's natural to be angry—and maybe even to want revenge. Divorce can settle things with your spouse, and some states allow judges to consider adultery when they're making decisions about alimony and other issues in divorce. But what about the interloper who destroyed your marriage—can you sue them?
This is a very common question, but a pretty uncommon scenario: An overwhelming majority of states have abolished these types of "heart balm" lawsuits. In states that still allow them, courts tend to look on them with disfavor. That means it's very difficult to win a case like this.
Depending on where you live, you might have the option of suing for "criminal conversation" or "alienation of affection." Both of these causes of action are civil lawsuits (known as "marital torts") filed by the aggrieved spouse (the "plaintiff") against the alleged homewrecker (the "defendant").
There's no possibility that the defendant will face criminal penalties or jail time. At worst, the defendant might have to pay a monetary award to the plaintiff: An injured spouse can ask a judge or jury to order that the defendant pay money damages based on loss of consortium (marital affection and fellowship), mental anguish, humiliation, injury to health, and the loss of support.
In all states that still allow homewrecker suits, spouses may also request punitive damages (a monetary fine to punish defendants for their bad actions). Although criminal conversation and alienation of affection are similar, they require different types of evidence.
Despite its name, a "criminal conversation" action isn't a criminal case. Many states' courts have held that criminal conversation is the same thing as adultery. So if you can't sue a homewrecker for the tort of adultery in the state, you're also barred from suing for criminal conversation.
Traditionally, criminal conversation requires solid proof that your spouse engaged in sexual relations with the defendant. Evidence of adultery is usually obtained by a private investigator, who photographs or videotapes the affair.
In general, to prove criminal conversation, you must show the following:
As of 2022, only Hawaii, Kansas, Maine, North Carolina, and Montana allow lawsuits for criminal conversation. However, in most of these states, no court has published a decision on the issue of criminal conversation in many years. Given the nationwide trend to eliminate the cause of action, it's very likely that today, any court in those states that had to decide a criminal conversation lawsuit would rule against a plaintiff seeking damages.
As of 2022, only Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah still allow alienation of affection lawsuits. And even though these suits might still technically be allowed, courts in most of these states have expressed a dislike for them. As a result, not many people successfully sue for alienation of affection anymore.
Each state that still allows alienation of affection has different rules about how to prove it. In general, though, you'll need to show the following:
In some states, you (the innocent spouse) might also have to show actual damages—for example, monetary damage that comes from loss of a spouse's monthly income.
Unlike criminal conversation, in an alienation of affection lawsuit you don't have to prove that your spouse actually engaged in a sexual act with the defendant. Rather, the core element of alienation of affection is that a third person's conduct caused you to lose love and affection from your spouse.
Although alienation of affection defendants are usually a spouse's lover, you can sue anyone thought to be responsible for the breakup, including counselors and therapists, clergy members, or family members.
It's undeniable that most people who've been cheated on have suffered emotionally. Feelings of betrayal, disgust, anger, and dismay aren't uncommon. However, it's extremely unlikely that any court would find that the homewrecker's actions were enough to warrant an award for the legal action called "intentional infliction of emotional distress."
Generally, courts award damages for intentional infliction of emotional distress only when the defendant's behavior is so outrageous and extreme that it goes beyond all possible bounds of decency.
To win a lawsuit for intentional infliction of emotional distress, you must show that:
Beyond the extreme outrageousness needed to sustain a lawsuit for intentional infliction of emotional distress, courts in many states have barred lawsuits that are based on acts similar to those that would prompt a plaintiff to sue for criminal conversation or alienation of affection.
However, there are some situations in which a cheated-on spouse could be successful with a lawsuit for intentional infliction of emotional distress. For example, a court might allow an emotional distress suit when there's evidence demonstrating that the homewrecker:
There aren't any hard-and-fast rules about what makes for a successful lawsuit for intentional infliction of emotional distress. Every state has different laws, and the result of every lawsuit for emotional distress depends greatly on the facts.
Whether it's worth your time, money, and mental anguish to file a marital tort lawsuit against the person your spouse cheated with depends on many factors. The most important of these is where you live. Unless you live in one of the few states that allow these suits, a court would likely immediately dismiss any marital tort suit you might file.
If you're not sure whether these suits are allowed in your state—or even if you know they're allowed—it's a good idea to consult with a knowledgeable family law attorney in your area. As well as informing you about the law in your state, a lawyer can evaluate the facts of your situation, compare them against other marital tort cases that have been brought in your area, and let you know whether your case might be successful. An experienced local attorney should also be able to let you know if your state's courts tend to disfavor these suits, making it even less likely that you'd succeed in suing the homewrecker that played a part in ending your marriage.