What States Can You Sue Your Spouse for Cheating?

Five states still let you sue the person who had an affair with your spouse: Hawaii, Mississippi, North Carolina, South Dakota, and Utah. These are the states where you can sue for cheating, and the lawsuit targets the outside party rather than your spouse. North Carolina is by far the most active jurisdiction, with juries regularly returning six- and seven-figure verdicts. Utah is on its way off the list: a bill passed in early 2026 abolishes the state’s alienation of affection claim effective May 5, 2027.¹

The Five States That Still Allow These Lawsuits

Most states eliminated so-called “heart balm” torts during the twentieth century. The handful that remain each handle them a bit differently.

North Carolina. Recognizes both alienation of affection and criminal conversation. The state has specific procedural rules, including a three-year filing deadline and a bar on claims based on conduct that occurred after the spouses physically separated.
Mississippi. Recognizes alienation of affection under common law. Courts apply a three-element test requiring wrongful conduct by the defendant, loss of affection between the spouses, and a direct causal link between the two.
South Dakota. Codifies marital interference under its personal rights statutes, which prohibit enticing a spouse away from the marriage.
Hawaii. Continues to recognize both alienation of affection and criminal conversation as civil causes of action.
Utah. Currently allows these claims, but the legislature’s 2026 bill ends the right to sue for alienation of affection on May 5, 2027.¹

If you live anywhere else, you cannot bring these claims. The area of law continues to shrink, so verify your state before you spend money on a case.

States You May See Listed That No Longer Qualify

Older articles sometimes still list Illinois and New Mexico. Both are out.

Illinois eliminated alienation of affection and criminal conversation entirely in 2016, replacing them with no-fault divorce and mediation processes.²

New Mexico followed in early 2026, when the state Supreme Court abolished the tort of alienation of affection in Butterworth v. Jackson, overturning a 1923 precedent.³ New Mexico residents can no longer bring these claims, regardless of when the affair occurred.

The Two Claims You Can Bring

In states that still allow them, there are two separate causes of action. Plaintiffs often file both because they protect against different risks at trial.

Alienation of Affection

This is the broader claim. You’re arguing that a third party’s actions destroyed the love and companionship in your marriage. You have to prove three things:

Love and affection existed between you and your spouse before the interference. The marriage doesn’t need to have been perfect, but genuine mutual regard must have been present.
The defendant’s conduct destroyed that bond. “Intentionally” here means the defendant knowingly engaged in conduct that would harm the marriage, not that they acted out of spite.
The defendant’s actions were the primary cause of the breakdown, not just a symptom of problems that already existed.

That third element is where most cases are won or lost. Defendants almost always argue the marriage was already deteriorating, and the jury has to decide whether the outside relationship caused the collapse or merely followed it.

Criminal Conversation

Despite the name, criminal conversation is a civil lawsuit, not a criminal charge. It focuses on the sexual relationship itself rather than the emotional damage. The elements are simple:⁴

A valid marriage existed at the time.
The defendant had sexual intercourse with your spouse.

You don’t need to prove the marriage was happy or that any love was actually destroyed. The sexual act during a valid marriage is the injury, which puts criminal conversation closer to a strict liability claim. If a jury isn’t persuaded by the emotional damage argument underlying alienation of affection, a criminal conversation count can still succeed on the physical facts.

Deadlines That Can End a Case Before It Starts

Two timing rules routinely kill otherwise strong cases.

The Statute of Limitations

In North Carolina, you have three years from the defendant’s last act that gave rise to the claim.⁵ The clock does not start when you discover the affair. Other states set their own deadlines and may use a different triggering event, so check the specific rule where you plan to file.

The Separation Cutoff

In North Carolina, no act by the defendant after you and your spouse physically separated with the intent to remain apart permanently can support a claim.⁵ The affair has to have taken place while the two of you were still together, or at least before either of you moved out intending the split to be permanent. If you separated first and your spouse’s relationship with the defendant began after that, there’s no claim, even if the divorce isn’t final.

North Carolina also limits defendants to natural persons. You can’t sue a company or organization, only the individual.⁵

What the Defendant Will Argue

Being sued doesn’t make the result inevitable. Defendants commonly raise:

The marriage was already over. Evidence of separate bedrooms, counseling, or open talk of divorce before the defendant came along undercuts the first element of alienation of affection.
Consent. If you knew about the affair and encouraged it, or were having your own affair and tacitly accepted your spouse’s, a court may find you consented.
Connivance. A step beyond consent: deliberately setting up your spouse to have an affair, often to gain leverage in divorce negotiations. Uncommon but it does come up.
Post-separation conduct. In North Carolina especially, a relationship that began only after the spouses physically separated with the intent to remain apart isn’t actionable. This is often the single most effective defense.

What You Can Actually Recover

Awards fall into two categories, and both can be substantial.

Compensatory damages cover actual harm: emotional suffering such as depression, insomnia, and weight loss; the financial impact of losing your spouse’s income; counseling costs; and other tangible losses. North Carolina juries have awarded anywhere from $50,000 to well over $5 million in compensatory damages depending on the circumstances.

Punitive damages punish particularly brazen conduct. A defendant who flaunted the relationship publicly, kept it going after being confronted, or showed a pattern of deliberate interference risks a punitive award that in several North Carolina cases has matched or exceeded the compensatory figure.

The Tax Bill Most Plaintiffs Don’t See Coming

These awards are generally taxable. Federal tax law only excludes damages for personal physical injuries or physical sickness from gross income.⁶ Emotional distress is explicitly not treated as a physical injury under that rule. Because infidelity suits are fundamentally about emotional and relational harm, the IRS treats most of these awards, compensatory and punitive, as taxable.⁷ A $500,000 verdict can leave you owing six figures in taxes the following April, so build that into any settlement negotiation.

Evidence and the Mechanics of Filing

Strong cases are built on documentation gathered before filing. Courts want concrete proof linking the defendant’s conduct to the deterioration of the marriage.

Start with a certified copy of your marriage certificate and the defendant’s full legal name and current address so the court can serve them. From there, two kinds of evidence do most of the work.

Communications are usually the backbone. Text messages, emails, direct messages, and call logs can show the frequency and nature of the relationship. Electronic evidence has to be authentic, complete, and unaltered; screenshots should display dates, both parties’ identities, and full exchanges rather than curated excerpts.

Financial records add an objective layer. Credit card statements showing hotel charges, gifts, or shared travel, along with unusual withdrawals or transfers, can establish the depth of the relationship. A timeline that lines the defendant’s involvement up with observable changes in your spouse’s behavior ties the picture together for a jury.

Filing itself begins with a civil complaint identifying you, the defendant, and the specific conduct. You file it with the clerk of court in the county where the defendant lives and pay the filing fee, which varies by jurisdiction and typically runs a few hundred dollars. A sheriff’s deputy or private process server then delivers the lawsuit to the defendant, who has a limited window to respond, usually 20 to 30 days depending on the state’s rules. No response can mean a default judgment in your favor.

These cases are expensive to litigate. Discovery, depositions, and trial preparation can run into tens of thousands of dollars before a jury hears a word. Winning isn’t guaranteed, and even a large verdict can be appealed or prove uncollectible if the defendant has no assets, so have a candid budget conversation with an attorney before you file.

1
Utah Legislature. SB0109
2
State of Illinois Office of the Illinois Courts. Illinois Supreme Court History: Love on Trial: Alienation of Affection and Criminal Conversation
3
New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections
4
LII / Legal Information Institute. Criminal Conversation Tort
5
NC General Assembly. North Carolina General Statutes 52-13 – Procedures in Causes of Action for Alienation of Affection and Criminal Conversation
6
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
7
Internal Revenue Service. Tax Implications of Settlements and Judgments