In a small number of states, you can sue the person your spouse cheated with. The claims are called alienation of affection and criminal conversation, and they let a wronged spouse recover money damages from the third party who got involved in the marriage. Most states abolished these lawsuits decades ago. Where they still exist, juries have returned verdicts in the millions.
Does Your State Allow It?
This is the first question, and for most readers it’s the last one too. As of 2026, only about half a dozen states still recognize alienation of affection or criminal conversation. North Carolina is the most active, followed by Utah, South Dakota, Mississippi, and Hawaii. New Mexico’s Supreme Court eliminated alienation of affection in January 2026 in Butterworth v. Jackson.1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections Illinois abolished its versions in 2016.2Illinois Courts. Illinois Supreme Court History: Love on Trial: Alienation of Affection and Criminal Conversation The list keeps shrinking.
If you live in a state that has abolished these torts, you have no claim against the other person. And even where the tort still exists on paper, the conduct generally needs to have happened in that state. You cannot shop for a friendlier jurisdiction if all the relevant events occurred somewhere that doesn’t allow the suit.
Alienation of Affection
Alienation of affection targets someone who destroyed the emotional bond between you and your spouse. Despite the name, the claim does not require proof of a sexual affair. A parent-in-law, coworker, therapist, or anyone else whose deliberate interference broke up the marriage could in theory be a defendant, though in practice the target is almost always a romantic partner.
To win, you have to show three things: your marriage had genuine love and affection before the interference, that affection deteriorated or was destroyed, and the defendant’s conduct was a substantial cause of the breakdown. The claim turns on causation. If your marriage was already falling apart before the defendant came along, the alienation element collapses. Courts look at the state of the relationship before and after, not just whether an affair happened.
North Carolina’s statute adds a cutoff worth knowing about: no act by the defendant gives rise to a claim if it happened after you and your spouse physically separated with the intent for that separation to be permanent.3North Carolina General Assembly. North Carolina General Statutes Chapter 52 – Section 52-13 Timing matters.
Criminal Conversation
The name sounds like a criminal charge, but criminal conversation is a civil lawsuit. It’s narrower than alienation of affection and, in some ways, easier to prove. Two elements: a valid marriage existed, and the defendant had sexual intercourse with your spouse during that marriage. A single encounter is enough. You do not need to show your marriage was happy, that affection was lost, or that the defendant meant any harm. The affair itself is the wrong.
Because the elements are so lean, liability tends to follow once you can establish that sex happened. The real fight is over damages. North Carolina’s statute limits the claim to natural persons, so a business entity cannot be sued even if a workplace relationship led to the affair.3North Carolina General Assembly. North Carolina General Statutes Chapter 52 – Section 52-13
Evidence You Would Need
Both claims use the civil standard: preponderance of the evidence. You don’t have to prove anything beyond a reasonable doubt. You need to show it’s more likely than not that the interference or the affair occurred.
For alienation of affection, the challenge is proving what your marriage looked like before and after the defendant got involved. Useful evidence includes testimony from friends and family about how the relationship changed, communications between your spouse and the defendant showing the nature of their contact, and records like hotel receipts, financial transfers, or gifts that document the scope of the affair. Photographs and social media posts that pin down a timeline can be surprisingly effective.
For criminal conversation, the central question is whether intercourse happened. Direct proof such as explicit messages, photographs, or an admission makes the case easy. Circumstantial evidence works too: proof that your spouse and the defendant spent the night together at a hotel, combined with evidence of a romantic relationship, lets a jury draw the obvious inference. Private investigator reports documenting overnight visits are common.
One caution. Evidence obtained by hacking into accounts, recording private conversations without consent, or trespassing may be inadmissible and can create legal exposure for you. Work with an attorney so your collection stays within legal bounds.
Defenses the Other Side Will Raise
The person you sue will fight back. A few defenses come up repeatedly.
- Pre-existing marital problems. The strongest defense to alienation of affection. If the defendant can show your marriage was already deteriorating before they got involved, the causal link breaks. Prior separations, divorce filings, or testimony about longstanding unhappiness can gut the claim.
- The marriage was doomed regardless. Even without proof that the marriage was already over, the defendant may argue the breakdown was inevitable for reasons unrelated to them. This tends to reduce damages rather than eliminate liability.
- Ignorance of the marriage. A defendant who genuinely did not know your spouse was married has a viable defense to alienation of affection. It does not work for criminal conversation, where the defendant’s knowledge is irrelevant.
- Your consent. If you knew about and consented to the affair, that defeats a criminal conversation claim. In most jurisdictions that still allow the tort, it’s the only recognized substantive defense to it.
What You Can Actually Recover
Damages can be substantial. Juries in North Carolina have returned verdicts exceeding $5 million, combining compensatory and punitive awards. Compensatory damages cover the emotional harm you suffered: loss of companionship, humiliation, mental anguish, and reputational damage. Courts may also account for financial harm if your spouse spent marital funds on the affair.
Punitive damages come into play when the defendant’s conduct was especially egregious or malicious. These are meant to punish, not compensate. Some states cap punitive damages, so a jury’s number may be reduced by the court. Predicting the financial outcome of any individual case is difficult.
The cost side matters too. Attorney hourly rates for complex civil litigation generally run from $150 to $600, and building a strong case often means investigators, expert witnesses, and extensive discovery. A plaintiff who loses walks away with legal bills. Weigh the strength of your evidence and the defendant’s ability to pay a judgment before you commit.
Taxes on Any Award
Money you receive from an alienation of affection or criminal conversation lawsuit is likely taxable income. Federal tax law excludes damages received for personal physical injuries from gross income, but emotional distress by itself does not count as a physical injury.4Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness Because these damages are rooted in emotional and relational harm, the IRS generally treats them as taxable.
The narrow exception covers amounts that reimburse you for actual medical expenses tied to emotional distress treatment, provided you didn’t already deduct those expenses on a prior return.5Internal Revenue Service. Tax Implications of Settlements and Judgments Punitive damages are always taxable. If you receive a significant award or settlement, talk to a tax professional before you spend it.
How It Interacts With Your Divorce
These tort claims are separate from divorce proceedings, but they influence each other. Filing one while a divorce is pending increases the adversarial temperature. Settlement gets harder, timelines stretch, and legal bills grow on both sides.
Evidence developed in the tort case can help in property division. If your spouse spent significant marital money on the affair, a family court may consider that when dividing assets. In states where fault still plays a role in alimony, proof of adultery can strengthen a spousal support claim.
Custody is different. Family courts focus on the child’s best interests, and an affair does not automatically make a parent less fit. Judges generally won’t penalize a parent for infidelity in custody decisions unless the affair directly harmed the children. Many family law attorneys will tell you to think hard about whether a tort claim actually advances your goals or just adds fuel.
Filing Deadlines
You cannot wait indefinitely. In North Carolina, the statute of limitations for both alienation of affection and criminal conversation is three years from the defendant’s last act that gave rise to the claim.3North Carolina General Assembly. North Carolina General Statutes Chapter 52 – Section 52-13 Other states that still allow the claim generally set deadlines in the two-to-three-year range. Miss the window and the court will dismiss the case no matter how strong the evidence.
The clock usually runs from the last act of interference, not the first. If the affair was ongoing, the limitations period may be measured from its most recent episode. Pinpointing that date can be tricky, so filing earlier is safer than testing the edge.