Hingham and Cape Cod divorce attorney Carmela Miraglia reviews a recent lawsuit brought against the “other man” from his wife’s alleged affair.

Different states have different laws, particularly when it comes to laws legislating morality. This is particularly true when it comes to adultery laws. As of 2018, 20 states still criminalize adultery. Surprisingly, Massachusetts has some the harshest adultery laws on the books. In addition to making routine adultery a felony, Ch. 208, s. 40 goes far as to make it a felony for former spouses to live together as roommates, even if they have no sexual relationship.

Of course, part of what makes Massachusetts’ adultery laws so silly is that the state does not actually enforce the outdated statutes on its books. Whether it is criminal sex outside of wedlock (“fornication”), blasphemy or prohibitions on same sex contact, the Massachusetts legislature leads the nation in failing to remove unconstitutional, unenforced and just plain stupid old laws from the books.

Not every state has moved past legislating morality, however. In a recent case from North Carolina, a civil court verdict awarded an ex-husband $8.8 million from the man who he claimed had an affair with his wife.

A Marriage, an Alleged Affair and a Divorce Lead to Adultery Lawsuit

According to the North Carolina Court’s findings, the husband and wife were married in 2010 and had a daughter together. Five years later, while at a BMX bike show organized by the husband, the Court found that the wife met another man. The two allegedly began an affair with the “other man” renting a room close to where the couple lived so he and the wife could meet. In April 2016, the wife was alleged to have nearly moved in with the other man, only to return to the husband to give the marriage another chance.

The marriage finally came apart in August of 2016 and the spouses were divorced in January 2017. Later, the ex-husband allegedly found out the wife and other man were living together. The ex-husband then filed the civil suit against the other man.

As is often the case, there was another side to the story: The wife claimed that she was stuck in an unhappy marriage with a man 15 years her senior, who was a controlling husband. He told her what to wear, he looked through her phone, and he made her work at his company without pay.

Statements from the divorced couples’ lawyers summed up the two sides of the conflict. The husband’s lawyer painted the other man’s behavior as “relentless,” and claimed that “there was no way that this marriage could have humanly been saved with the level of this man’s involvement.” The wife’s lawyer, however, claimed the marriage “needed one more blow before it was over.”

Husband Files Personal Injury Claims Against Other Man for Adultery, Wins $8.8 Million

The characterizations above did not come from a divorce trial, however. Instead, the positions arose out of a lawsuit that the husband filed against the other man for a wide variety of tort, or personal injury claims based on the act of adultery:

• Criminal conversation
• Alienation of affection
• Intentional and negligent infliction of emotional distress
• Assault and battery

Statutes addressing torts such as criminal conversation and alienation of affection are only in a handful of states in the U.S. These statutes provide a specific civil cause of action that a spouse can bring about the alleged lover of an adulterous spouse. North Carolina is one of these few states, and there is a surprisingly strong body of case law.

Utilizing these claims, the husband filed a civil lawsuit against the man he claimed had an affair with his wife. After the other man failed to respond to the lawsuit, the judge entered a default judgment against him and the case proceeded to the issue of how much the husband should receive as a result of the man’s interference with the marriage. After hearing the evidence, the judge decided the husband should receive $2.2 million in compensation for the adultery, as well as $6.6 million in punitive damages to punish the other man for his conduct.

Needless to say, the other man is planning to appeal.

So-Called “Home-Wrecker” Laws in North Carolina and Massachusetts

Together, criminal conversation and alienation of affection are known as “home-wrecker” laws in the states that still recognize them.

Criminal conversation—with “conversation” being a euphuism for sexual intercourse back when these laws were first written—is, at its core, a “cuckold” law, is deceptively named. Although the word “criminal” is used in the name, the laws are actual civil in nature. Criminal conversation statutes, where they still exist, allow jilted spouses to obtain financial compensation from the person who slept with their significant other during the marriage. So-called “homewrecker” laws, like “fraudulent marriage” laws – which allowed individuals to sue a spouse for persuading a future spouse to marry on false pretenses – have grown increasingly disfavored as “no-fault divorce” has become the law of the United States.

Alienation of affection is a personal injury claim that is similar to criminal conversation. A claim for alienation of affection implies that there was a loving and affectionate marriage or relationship that was destroyed because of someone else’s conduct. What distinguishes alienation of affection laws from criminal conservation is the necessary presence of adultery in criminal conservation statutes. In contrast, a person may bring an alienation of affection actions against a defendant in a car accident case – if the individual at fault for the accident caused injuries to a spouse that interrupts the spouse’s marriage.

While North Carolina still recognizes these criminal conversation, which focus on the contractual nature of a marriage and the idea that anyone who interferes with such a contract should be held accountable, Massachusetts has followed most of the other states in the country and explicitly removed these torts as causes of action. As we see in the context of “fraudulent marriage” cases, Massachusetts, like most states, increasingly limits civil liability for marital conduct to filing for divorce.

Is Adultery Punished in Massachusetts? No, but the Criminal Statute Still Matters

Even though you cannot file a lawsuit against someone else for committing adultery with your spouse, adultery can have legal consequences in Massachusetts – in a limited set of circumstances.

Technically, adultery is still considered a crime—and a felony level crime, at that—in Massachusetts. Prosecutors, however, almost never pursue charges for criminal adultery, and, if they do, the proceeding is a criminal one that does not lead to compensation for the other spouse for the affair.

When it comes to divorce law, though, adultery can be used as a way of proving that the divorce was your spouse’s fault. Judges also have the discretion to consider a spouse’s “conduct” during the marriage when dividing the marital assets in the divorce under G.L. c. 208 s. 34. Adultery—generally speaking, at least—usually will not result in a bigger financial award or different custody decision, even if the affair was with the babysitter.

Ironically, the outdated felony status of adultery in Massachusetts generally provides an advantage for actual adulterers divorce cases. Because adultery remains a crime in Massachusetts, spouses can exercise their fifth amendment privilege against self-incrimination when asked about an affair at trial or during a deposition. The inaction of lazy Massachusetts legislators – who seem to think that repealing the criminal adultery statute, like 30 other supposedly progressive states, would make them “pro-adultery” – offers actual adulterers protection by permitting them to “plead the fifth” regarding adultery, despite the absent of any actual risk of prosecution for the crime.

About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Cape Cod family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation. Harold A. Mazzio, a law student at Suffolk University Law School, contributed to this blog.

Schedule a consultation with Carmela M. Miraglia today at (781) 253-2049 or send her an email.