In Florida, Can I Sue The Person Who Stole My Husband or Wife From Me?

Can I sue my wife's lover

In Florida, you used to be able to sue a seducer or seductress who your husband or wife ran away with. 

Before 1945, there were all sorts of ways you could sue the new person in your spouse’s life. 

You could file a suit for “alienation of affection” claiming that your spouse would still be in love with you if not for the actions of a third party. 

If you go back far enough it was even a crime to sleep with a married man or woman.  Back then they never referred to sex directly so the crime was called “criminal conversation.”

People even sued the seductor/seductress saying that their amorous actions had caused a breach of promise (of fidelity) on the husband or wife’s part.

As you can imagine, this tortious action and this criminal statute created more drama then it prevented and in 1945 the Florida legislature enacted the following law:

“The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished.” Fla. Stat. Sec 771.01

Now, the only tort you could use to sue the person who stole your husband or wife is “intentional infliction of emotional distress.”

Intentional infliction of emotional distress requires that “(1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.” Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58, 59 (Fla. 3d DCA 1983)

The problem with an intentional infliction of emotional distress case against your spouse’s lover is the second prong of the test “the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community.” Having an affair with a married man or woman is an unpleasant notion at best but in the current year it would be hard to characterize that behavior as “utterly intolerable.”  Our society no longer shuns adulterers (it if ever did).

Adultery can still be a large factor in an underlying divorce case, however.

Monies spent by a husband or wife on their lover can constitute a dissipation of assets.  That is if your husband spent $ 10,000 on his mistress during the marriage, it will be assumed that $ 10,000 of the marital state is now dissipated and that whatever is left of the marital estate should be divided as though the $ 10,000 was still there and the husband’s share had already been awarded.  So, in this scenario, if there was $ 100,000 left in the marital estate at the time of divorce, the wife would receive $ 55,000 and the husband would $ 45,000.

If, on the other hand, the new boyfriend or girlfriend was spending money on the spouse, those expenditures can be used to possibly prove another source of income for the spouse and thereby reduce any alimony award. 

In my years of practicing divorce law, the worst aspect of adultery is when the new boyfriend/girlfriend gets introduced to the children.  It is incumbent on the aggrieved spouse to be the bigger person and allow the introduction so as to eliminate any accusation of alienating the children from their parent. 

That being said, a parenting plan can include requirements for meeting any new romantic partners.  Requirements often include that a relationship be at last X months long or that the new partner be engaged to the party.

If you’re considering divorce, please contact my Naples, Florida family law firm to talk with an experienced attorney about your case.

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