Can I Sue the Other Woman for Destroying My Marriage?

By , Attorney


Can I sue the other woman for destroying my marriage?


This is a very common question, but a pretty uncommon scenario. Depending on where you live, you may be able to file suit against the other woman (or man) through one of two types of civil tort claims – "criminal conversation" or "alienation of affection."

The overwhelming majority of states have abolished these types of "heart balm" lawsuits, but as of 2018, the following states still allow spouses to sue "home wreckers" – Hawaii, New Mexico, North Carolina, Mississippi, South Dakota, and Utah. Although this cause of action is still valid in New Mexico, the New Mexico Court of Appeals has made it clear that courts in the state disfavor these lawsuits. (Padwa v. Hadley, 981 P.2d. (N.M. Ct. App. 1999).

Criminal Conversation and Alienation of Affection

Depending on where you live, you may have the option of alleging "criminal conversation" or "alienation of affection." In either case, an injured spouse can ask a judge or jury to order that the "defendant" (the third-party who destroyed the marriage) pay money damages based on loss of consortium (marital affection and fellowship), mental anguish, humiliation, injury to health, and/or the loss of support.

In all of these states, 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.

What is Criminal Conversation?

Despite its name, a "criminal conversation" action isn't a criminal case. It's a civil case, brought in civil court, where the defendant won't face criminal penalties or jail time.

Criminal conversation requires solid proof that your spouse engaged in sexual relations with the third-party defendant. Evidence of adultery is usually obtained by a private investigator, who photographs or videotapes the affair.

Although specific state laws may vary, generally speaking, to prove criminal conversation, you must show the following:

  • you are legally married to your spouse
  • your spouse and a third-party actually had sex (you can't sue a business, such as a "gentlemen's club" for criminal conversation)
  • the sexual intercourse occurred during the marriage, not after separation, and
  • the adulterous act(s) took place within the state's statute of limitations – for example, in North Carolina, the lawsuit must be filed no more than three years from the last act of adultery.

What is Alienation of Affection?

With alienation of affection, you don't have to prove that your spouse had extramarital sex. The core element of this claim is that a third person's conduct caused alienation.

Although this usually involves a mistress or lover, alienation of affection claims can be brought against anyone thought to be responsible for the break up, including counselors and therapists, clergy members, and family members, such as a mother-in-law who advised her son (or daughter) to end the marriage.

To prove alienation of affection, you'll need to show the following:

  • you and your spouse shared a loving marriage, with genuine affection and love
  • the love and affection was alienated and destroyed
  • the third person's wrongful and malicious behavior directly caused the alienation, and
  • you (the innocent spouse) were damaged in some way.

North Carolina seems to lead the pack in terms of the number and notoriety of alienation cases.

In one North Carolina case, a jury awarded a wife $9 million from her cheating husband's mistress after finding that the other woman ruined the marriage.

In another North Carolina case, a husband sued his wife's lover (Eleazar Montemayor) and – the infamous extramarital dating website. He claimed that ("Life is short. Have an affair.") wrecked his 13-year marriage by introducing his wife to Montemayor, whom she later married.

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