A “heart balm” tort is a cause of action that allows an injured spouse to sue another for money damages. The classic heart balm torts are alienation of affections and criminal conversation.
Alienation of affections is a lawsuit against a third party for conduct that takes away or reduces a spouse’s love and affection. These cases do not need sexual conduct to be successful (although sex between the spouse and paramour certainly helps the claim).
Criminal conversation is all about sex. Criminal conversation occurs when a person’s spouse has a sexual relationship with a third party.
Some states still resolutely hold on to the torts of alienation of affections and criminal conversation even though the trend is for states to remove the torts form their laws. As of 2016, Mississippi, Hawaii, North Carolina, South Dakota, and Utah still recognize alienation of affections. Criminal conversation is recognized by only four states: Hawaii, Kansas, Maine, and North Carolina.
Effective Defenses and Counterclaims
The defendant in one of these heart balm cases must search for effective defenses. An effective defense in one of these cases is anything that levels the legal playing field. A defendant must look for ways to push back legally so that the plaintiff has a risk of loss and a reason to avoid trial. Defenses and counterclaims increase the chance of settlement and help avoid an embarrassing trial for the defendant.
What can a defendant do who has been sued for alienation of affections and/or criminal conversation? There are many options available based on the elements of the claim. Of course, the typical affirmative defenses should be reviewed. Statute of limitations vary by state. Pay close attention to when the conduct was discovered.
The existence of the marriage and consent are common defenses. It is worth confirming that the plaintiff and her spouse had a valid marriage. It is not unusual for these claims to arise out of “swinging” scenarios where, at least at some point, there was consent of the spouse who now claims to be injured.
Personal and subject matter jurisdiction should also be carefully reviewed and raised as defenses. For example, if the sexual relationship occurred across state lines in a state that does not recognize criminal conversation, a motion to dismiss for lack of subject matter jurisdiction may prove successful. For example, a lawsuit in North Carolina alleging only sexual relations in South Carolina would likely be dismissed.
The conduct of the plaintiff should also be closely examined. Sometimes injured spouses will strike back in some way. That very human response can help the defendant level the legal playing field. For example, an injured spouse who sends an anonymous letter to the defendant’s employer may be crossing several lines and opening herself up to a tortious interference of contract counterclaim. In the right case, a counterclaim for unfair and deceptive trade practices might be available.
Counterclaims for slander and libel are also appropriate if the injured spouse has taken her grievances to Facebook, Twitter, or some other social media platform. Claims for infliction of emotional distress are viable in many states as well.
In some situations, the injured spouse may assault or threaten the paramour. If that happens then counterclaims for assault and battery may be appropriate.
In conclusion, it pays to be creative if you are defending one of these cases and think outside of the box. You may be able to put pressure on the plaintiff and resolve the case well before trial. Work with an experienced family lawyer such as the Family Lawyer Raleigh NC locals turn to.
Thanks to authors at Allen and Spence, PLLC for their insight into family law and heart balm torts.