Extra-marital affairs are an unfortunate, but recurring, theme in family law cases. All too often, a spouse that believed he or she was part of a strong, loving marriage learns the hard way that the other spouse was secretly having an affair. Though sometimes marriages are strong enough to survive following disclosure of the affair, in many instances, the affair precipitates separation and, ultimately, divorce.
Apart from the effect an affair may have on family law claims against one’s spouse, it also may provide a cause of action against the other spouse’s paramour. Those claims are labeled “alienation of affection” and “criminal conversation.” Collectively, they are sometimes referred to as “heart-balm torts.” These claims are pursued against the paramour separate and apart from family law claims, often in a completely different court.
To prove a claim for alienation of affection, the jilted spouse must prove that, prior to the commencement of the affair, he or she had a loving marriage, that the loving marriage was diminished or destroyed by the paramour’s conduct, and that it was that wrongful conduct that led to the diminishment of the marital relationship. The jilted spouse may seek damages for emotional distress and mental anguish, shame, humiliation, and economic damages, which may include the loss of the cheating spouse’s financial contributions toward the marriage. In the appropriate case, punitive damages may be available to punish the paramour for his or her actions.
The thrust of an alienation of affection claim is that the love and affection of the cheating spouse toward the jilted spouse was “alienated” by the paramour. For that reason, such a claim may exist even if the paramour and the other spouse do not engage in sexual conduct—though they almost always do. It is sufficient if the paramour interfered with the marriage to the point that the love and affection the other spouse once directed within the marriage becomes re-directed toward the paramour. This can occur through both in-person contact as well as virtual contact, such as texts, phone, FaceTime, SnapChat, etc.
Criminal conversation is a euphemism for the act of sexual intercourse with someone else’s spouse. Though the word “criminal” is used in the label, it is strictly a civil claim for money damages. A single act of sexual intercourse is sufficient to state a claim for criminal conversation. Typically, a criminal conversation claim is joined together with a claim for alienation of affection because the damages arising from this type of conduct flow primarily from the alienated affections of the cheating spouse.
The strength of a plaintiff’s claims for alienation of affection and criminal conversation depends on many factors, including the length of the marriage, the length of the affair, whether the married couple had young children, and whether the paramour knew or was friends with the jilted spouse before or while having an affair with the cheating spouse. Evidence that may strengthen the claim includes photographs depicting a loving bond between the married couple, testimony from friends and family regarding the strength of their relationship prior to the affair, and cards, notes, texts, etc. written by the cheating spouse expressing love and affection toward the jilted spouse just prior to the affair.
The strongest alienation of affection/criminal conversation case would be one in which, just prior to the affair, the cheating spouse and the married spouse had a strong, loving relationship, documented by photographs, cards, notes, and the testimony of friends and family, and one or more children were born in the year or two preceding the affair—and where the affair continued to the point that the cheating spouse and the paramour began living together or even got married themselves. The case would be even stronger if the paramour purported to be friends with the jilted spouse at the very time he or she was secretly engaged in a sexual relationship with the other spouse. Even stronger would be a case in which the paramour and the other spouse had sexual relations in the marital home or bed and/or the paramour wore the jilted spouse’s clothing or jewelry.
In contrast, a defendant-paramour in an alienation of affection case typically will attempt to demonstrate that the marriage began falling apart prior to the affair, and will seek to introduce evidence that the spouses were sleeping in separate bedrooms, did not regularly have sex, were constantly fighting, and openly discussed the topic of divorce. The defendant may also seek to demonstrate that the cheating spouse had cheated with others besides him or her or that the affair was short-lived, such that the paramour’s conduct could not be considered the proximate cause of the failure of the marriage.
A lawsuit for alienation of affection or criminal conversation must be brought no later than three years from the last act of the paramour giving rise to these claims. For a criminal conversation claim, that means no later than three years from the last time the paramour and the cheating spouse had sexual intercourse. For an alienation of affection claim, that three years may be based on other conduct by the paramour, such as telephone calls or texts to the cheating spouse which continued to alienate him or her from the marital relationship.