You can sue a third party for the breakdown of your marriage, if you believe your marriage ended because of the party's interference. An "alienation of affection" or "criminal conversation" tort holds a third party liable for the deterioration of your marriage. The third party can be a friend, relative, therapist or anyone who convinced your spouse to commit an act of alienation such as filing for divorce or leaving the marital home.
Historical Precedence for Suing Third Parties for Divorce
Alienation of affection and criminal conversation dates back to a time when wives were the property of their husbands. Courts referred to these torts as "heart balm" torts because the intent was to soothe the jilted husband’s broken heart by compensating him for his loss. When a wife strayed, the husband could seek damages through the courts by claiming third party interference in marriage caused his wife to leave.
Every state with the exception of Alaska and Louisiana recognized the torts as common law. Originally, only men could file an alienation or criminal conversation tort. By the late 1800s, women received the right. As of 2018, Hawaii, Mississippi, New Mexico, North Carolina, South Dakota and Utah are the remaining tortious interference marriage states, which means this law is still recognized.
Upholding Alienation of Affection and Criminal Conversation
Some former tortious interference marriage states have abolished their laws governing this type of legal action. South Dakota and Mississippi had the opportunity to abolish the alienation of affection law in 1999. South Dakota reasoned that the arguments for terminating the law were well-founded, but since statute created the law, government should abolish the third party interference in marriage law.
Mississippi reasoned that marriage served an important role in the foundation of society. To eliminate the law sent the message that marriage was no longer a fundamental component of society.
In 2009, North Carolina added three rules to clarify both torts. Neither tort has validity if the couple physically separates. The assembly added a three-year statute of limitation from the date of the last act and abandoned spouses can only sue a human being.
Read More: Alienation of Affection Divorce Laws
Alienation of Affection Burden of Proof
Under alienation of affection guidelines, you do not need to prove that your spouse engaged in an intimate act with another person. You must convince the court that your marriage was healthy, based on mutual love and affection and the defendant's actions or suggestions shattered your marriage. You do not need to prove you had a perfect marriage, nor do you have to live with your spouse when the acts occurred. Your testimony or the testimony of another witness suffices to prove your side of the case.
Criminal Conversation and Alienation of Affection
Criminal conversation differs from alienation of affection in that the you must prove you are legally married and your spouse engaged in an intimate act with a third party while married. You can win even if the third party did not know of the marriage.
Courts do not require proof that love and affection existed in your marriage. You also do not need to prove the intimate act destroyed your marriage. The third party has two defenses under this tort. The defendant can claim you approved of the intimate relationship or the statute of limitation expired.
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