Can I Sue My Spouse's Lover in Any State?
In a handful of states, you actually can. Six states allow you to file a lawsuit against a person who had sex during your marriage with your spouse. They also allow you to sue someone who ruined your marriage, whether that person had sex with your spouse or not.
These jurisdictions are exceptions, however. Every other state bans these “homewrecker" or “heart balm" claims, as they are sometimes called.
If you're going through a divorce, you may already have hired a divorce lawyer. They may be able to advise you about whether trying to go after the person who interfered with your marriage would best serve your interests.
Marriage can be an uncomfortable topic. When you get married, you hope it's forever. That you will be happy and your spouse will be faithful. Unfortunately, that's not the reality. About half of the marriages in the U.S. now end in divorce.
If your marriage falls apart, you may feel angry and betrayed. Maybe your spouse had an extramarital affair and you blame, rightly or wrongly, your spouse's lover. Maybe you blame someone else (such as your mother-in-law, family members, or a therapist) for persuading your spouse to divorce you. In either case, you may be angry enough to want to sue that person (and probably throttle your ex-husband or ex-wife).
In a handful of states, you actually can. Sue, that is.
Let's start with some terminology that you will see in many older cases and statutes. “Mistress" is a sexist and archaic term for a woman who has an affair with a married man. “Cuckold" is an archaic term for a husband whose wife has had an extramarital affair. Phrases like, “husband's mistress," “spouse's mistress," and “wife's lover" smack of misogyny and are antiquated at best. And if you encounter the word “paramour," you are probably reading Shakespeare.
Nowadays, it's better to speak of spouses and their lovers. And those are the terms we will use here.
Where Can You Sue?
In Old England, the law considered wives to be the personal property of their husbands. A wife's affection was also considered a husband's property that could be stolen by another man. This common law perception was carried to the United States when it declared independence. Beginning with New York, nearly every state let you sue someone who interfered with your marriage. The thinking was that such lawsuits would help preserve marriages and families.
Initially, only husbands could bring a lawsuit. In the 1800s and early 1900s, the legal status of women evolved from property to person. As legal persons, women gained the right to sue third parties who interfered with their marriages. However, over time the view of spousal love as property also evolved. If a spouse's love wasn't property, it couldn't be “owned," and therefore couldn't be stolen. With this evolution, states began to ban such lawsuits.
Today, only six states still allow you to sue a third party for interfering with your marriage:
- New Mexico
- North Carolina
- South Dakota
Illinois used to recognize such claims but banned them in 2016.
What Can You Sue For?
If you live in one of those six states, you may be able to bring a civil tort claim (a tort is a legal wrong that a civil court can remedy) against someone who ruined your marriage. What you sue for depends on what happened. We will refer to both collectively, as is often seen in the literature, as “homewrecker torts."
Criminal conversation is a tort that lets you sue someone who had sex with your spouse during your marriage. To show criminal conversation, you must prove the following elements:
- You were in a valid marriage with your spouse
- The party you are suing (called the “defendant") had sex with your spouse during your marriage
Proving you were in a valid marriage is pretty easy — just use your marriage certificate. Proving your cheating spouse had sex with the defendant can be harder. You may need to rely on circumstantial evidence.
Circumstantial evidence does not, on its face, prove something. Rather, it gives rise to an inference of something. For example, evidence of motive and opportunity tends to prove that someone did something. In a criminal conversation case, you can show that your spouse and the defendant were inclined to have extramarital sex and had the physical opportunity to have sex. Evidence of inclination and opportunity is circumstantial evidence that they had sex.
Alienation of Affection
You can also bring a tort claim for alienation of affection. Alienation of affection is broader than criminal conversation. You don't need to show that the defendant actually had sex with your spouse. Instead, you generally need to show the following elements:
- You are in a valid marriage
- There is love and affection in the marriage
- The defendant caused or contributed to the loss of love and affection
- Your spouse's love or affection was in fact lost
You don't have to show that the defendant intended to ruin your marriage, but you do need to show that they intended to act in a way that could foreseeably hurt the marriage.
Your alienation of affection claim isn't limited to your spouse's lover. You can sue anyone who ruins your marriage. For example, your father-in-law tells your spouse that they are out of the will unless they divorce you. Or your spouse's therapist might tell them that they will be healthier if they leave you. In either case, if your spouse leaves you, you may be able to win a claim under alienation of affection laws.
There are several defenses to these homewrecker torts:
- Knowledge: If the defendant didn't know you were married, you cannot sue them for being a homewrecker.
- Separation: If you are legally separated from your spouse or are separated with the intention of making the separation permanent, you may not be able to bring a lawsuit.
- Intensity of affection: The third is based on the intensity of affection between you and your spouse. If the defendant can show that the love between you and your spouse was lost before they acted, you cannot recover.
- Statute of limitations: A statute of limitations limits the time in which you are allowed to bring a lawsuit. In most states, the statute of limitations for a homewrecker tort is three years (in Utah, it's four years). Make sure you check your state's law carefully. If you don't bring your lawsuit within the time allowed by the statute of limitations, you will be forever barred.
What About Intentional Infliction of Emotional Distress?
You may have come across another tort that you think might apply to a ruined marriage: intentional infliction of emotional distress. You generally can sue someone for intentional infliction of emotional distress if you can prove the following elements:
- The defendant acted act intentionally or recklessly
- The defendant's conduct was extreme and outrageous
- The conduct was the cause of severe emotional distress
The reason you can't sue a homewrecker under this tort is that ruining someone's marriage is no longer considered “extreme and outrageous." As already noted, people get divorced all the time, and a common reason is that one spouse had an affair. While still largely frowned upon, an affair is no longer considered “extreme" or “outrageous." You therefore cannot sue someone for this tort for ruining your marriage, no matter how much it hurt you.
While you can't file a lawsuit just for emotional distress, if you win your case for criminal conversation or alienation of affection, you can be compensated for the damages, including emotional distress, that you suffered. Compensatory damages are monies that the court can award you to make you whole again. This requires putting a monetary amount on the losses you sustained.
For example, you may have suffered:
- Out-of-pocket costs (e.g., therapy, medication, a private investigator) medications
- Loss of support (likely reduced by any alimony or spousal maintenance you are receiving)
- Loss of consortium (love, companionship, and sexual relations)
- Emotional distress
You would be able to recover these categories as compensatory damages.
In a rare case, you may be able to recover punitive damages. Punitive damages aren't intended to make you whole. They are designed to punish a wrongdoer for extreme and outrageous conduct and to deter others from engaging in similar conduct in the future. You would have to present evidence of aggravating circumstances beyond the level of malice inherent in ruining someone's marriage. This can be hard to do. Having a good lawyer in your court can help immensely.
You May Benefit From Consulting a Lawyer
As quaint as they may seem, criminal conversation and alienation of affection lawsuits are still brought today in the six states that allow them. But in these supposedly enlightened times, courts view these ancient causes of action with disfavor. They can be hard to win.
If you believe someone caused you and your spouse to break up, you may want to consult with an experienced family law lawyer, a divorce attorney, or a personal injury attorney. A law firm can give you legal advice within the context of an attorney-client relationship that will help you decide whether you have a homewrecker claim and if suing that person who ruined your marriage may be worth it.
In the meantime, focus on your healing. You will get through this.