At the time of publication, approximately half of all states and the District of Columbia consider adultery a crime, separate and apart from the divorce proceeding. In some jurisdictions, only the injured spouse can level adultery charges against the other spouse. Some states prohibit the spouse from doing so because one spouse can’t legally testify against the other. In these states, wronged spouses may choose to press charges against the other spouse’s paramour instead. Adultery is generally a misdemeanor in states that recognize it as criminal wrongdoing; however, such criminal statutes are rarely invoked.
Alienation of Affection
At the time of publication, four states allow civil actions for adultery based on a tort claim of "alienation of affection." These states include North Carolina, Illinois, Utah and Mississippi. A tort claim means that the paramour, not the straying spouse, committed an act of wrongdoing and a court can legally hold her responsible by ordering her to pay monetary damages. The injured spouse does not have to prove sexual intercourse to substantiate an alienation of affection claim. The emotional ramifications of an affair are sufficient if the affair destroyed the love and affection between spouses. The injured spouse must file her lawsuit within three years of discovering her partner's infidelity.
States that recognize alienation of affection lawsuits also recognize criminal conversation lawsuits, another type of tort action. Despite its name, criminal conversation has nothing to do with dialogue. A criminal conversation action is very similar to an alienation of affection lawsuit, except a sexual act must occur. That act must take place while spouses are living together, not post-separation. It carries a three-year statute of limitations. The injured spouse does not have to prove her marriage would have remained happy if her spouse hadn’t strayed. She only needs to prove sexual infidelity occurred.
Infliction of Emotional Distress
A third legal option regarding adultery is an intentional infliction of emotional distress (IIED) lawsuit. This is also a tort action and permissible in many states that do not recognize alienation of affection or criminal conversation. Like other tort actions, the defendant is the paramour, not the straying spouse. The injured spouse may file a claim against the paramour alleging her interference in the marriage caused the spouse significant emotional distress and the paramour's actions were malicious and intentional. Successful IIED lawsuits also result in monetary awards, but malicious and intentional conduct is sometimes difficult to prove in a court of law.
Impact as a Divorce Ground
In states that recognize fault-based divorces, adultery can sometimes affect property distribution with the injured spouse receiving more marital property. However, the difference in property distribution is usually not substantial, such as a 75/25 split in favor of the wronged partner. Some states also impose a statute of limitations on using adultery as a divorce ground. If you resume a marital relationship with your spouse after you find out about his infidelity, you’ve condoned the relationship and your spouse can use that to defend against it.