Articles
Divorce Articles:
Alienation of Affection and Criminal Conversation
Criminal Conversation:
Criminal conversation is the name for a civil lawsuit sounding in tort (a kind
of injury to the person) based on sexual intercourse between the defendant and
the plaintiff's spouse. Criminal conversation is something like a "strict
liability tort" because the only things the plaintiff has to proved are (1) an
act of intercourse and (2) the existence of a valid marriage bewteen the
plaintiff and the adulterous spouse, and (3) the bringin of the lawsuit within
the applicable statute of limitations. For all practical purposes, there are no
obvious defenses to a timely claim for criminal conversation, provided the
plaintiff can prove a valid marriage and intercourse between the defendant and
plaintiff's spouse. It is not a defense that: the defendant did not know the
other person actually seduced the defendant, that the marriage was an unhappy
one, that the defendant's sex with the spouse did not otherwise impact on the
plaintiff's marriage, that plaintiff had mistreated the spouse, or that the
plaintiff had also been unfaithful. It might be a defense that the plaintiff
"consented" to illicit intercourse; but defendant would have to show that this
approval or encouragement had pre-dated the extramarital conduct.
Alienation of Affection:
An action for alienation of affection, on the other hand, does not require proof
of extramarital sex. Despite this difference, an alienation claim tends to be
more difficult to establish because it is comprised of more elements and there
are some additional defenses. To succeed on an alienation claim, the plaintiff
has to show that (1) the marriage entailed love between the spouses in some
degree; (2) the spousal love was alienated and destroyed; and (3) defendant's
malicious conduct contributed to or caused the loss of affection. It is not
necessary to show that the defendant set out to destroy the marital
relationship, but only that he or she intentionally engaged in acts which would
forseeably impact on the marriage. Thus, defendant has a defense that the object
of his or her affections was in fact married. As with a criminal conversation
action, it is not a defense that the non-innocent spouse consented to
defendant's conduct. But it might be a defense that the defendant was not the
active and aggressive seducer. If defendant's conduct was somehow inadvertent,
the plaintiff would be unable to show intentional or malicious action. But prior
marital problems do not establish a defense unless such unhappiness had reached
a level of negating love between the spouses.
http://www.rosen.com/ppf/Law/Divorce?rosen/201/articles.asp
George K. Saleeby
United Investigative Services
PO Box 427
Willow Springs, NC 27592
919-557-3766
919-696-3134 Cell
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