When discussing civil lawsuits over adultery, the legal claim known as Criminal Conversation is generally lumped together with another legal claim called Alienation of Affection. Both legal claims have fallen out of favor over the years in most states. In fact, only seven U.S. states still allow alienation of affection and criminal conversation lawsuits – Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. In both types of lawsuits, the defendant is a third-party and not one of the spouses in the marriage.
Although the two legal claims are very similar and are often brought together in the same lawsuit to maximize the possibility of liability and recovery, they do have different elements.
Criminal conversation is the name for a civil (not criminal, as the name implies) lawsuit requires the plaintiff to allege and prove the occurrence of sexual intercourse between the defendant and the plaintiff’s spouse – adultery. If the plaintiff can prove (1)the existence of a legally valid marriage and (2) sexual intercourse, the only possible defense can be that the plaintiff and his or her spouse were separated with the intent that the separation be permanent (even a temporary separation will not be a defense) or that the plaintiff consented to the intercourse between spouse and defendant.
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