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• Legal requirements

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An action for alienation of affection does not require proof of extramarital sex. An alienation claim is difficult to establish because it comprises several elements and there are several defenses.

To succeed on an alienation claim, the plaintiff has to show the following elements:

1. the marriage entailed love between the spouses in some degree;

2. the spousal love was alienated;

3. the defendant's malicious conduct contributed to or caused the loss of affection.

It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact the marriage.

Thus, the defendant has a defense against an alienation claim where it can be shown that he or she did not know that the object of his or her affections was in fact married. It is not a defense that the guilty spouse consented to the defendant's conduct, but it might be a defense that the defendant was not the active and aggressive seducer.

If the defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

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