Discovering that your spouse has been engaged in an extramarital affair without your knowledge can be devastating. The trust between the both of you in the marriage is now destroyed. The cheating spouse may have been using marital assets to pay for gifts, hotel rooms or transportation to carry out illicit activities with this other person. Outside of financial considerations, there is also the damage resulting from the shock, humiliation, outrage and loss of reputation resulting from the interference of the third person in your marriage. Can the innocent spouse sue for relief in court against the third-party interloper and obtain a money judgment?
Civil torts against the paramour used to be available in every state of the union. Specifically, the cause of actions available were as follows:
- Criminal conversation – a tort brought by the innocent spouse against a third party seeking damages for the act of sexual intercourse outside of marriage. Each act of adultery gives rise to a separate claim for criminal conversation.
- Alienation of affections – a tort brought by the innocent spouse against a third party seeking damages for malicious conduct that caused the cheating spouse to alienate his or her love from the innocent spouse.
However, these actions are no longer available in Michigan. Effective January 1, 1963, the causes of action of “criminal conversation” or the “alienation of the affections of any person, animal, or thing capable of feeling affection, whatsoever” are abolished. MCL 600.2901.
Adultery, interestingly enough, is still a criminal felony offense on the books in Michigan. “Any person who shall commit adultery shall be guilty of a felony; and when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and liable to the same punishment.” MCL 750.30. On its own plain language, the crime of adultery is not equally applied across all genders:
- Any of the spouses, whether husband or wife (or otherwise), that commits adultery is guilty of a crime.
- An unmarried man who has sexual intercourse with a married woman is guilty of adultery.
- However, an unmarried woman who has sexual intercourse with a married man is NOT guilty of adultery.
A prosecution for adultery can only be commenced on the complaint of the husband or wife, but “no such prosecution shall be commenced after 1 year from the time of committing the offense.” MCL 750.31. If found guilty, adultery is a felony conviction punishable by a fine up to $5,000.00 or up to 5 years in prison, or both. However, there is virtually no chance of anyone getting prosecuted for adultery in Michigan these days. No prosecutor has been known to charge the offense of adultery in any court in Michigan for the last 100 years.
For the most part, it appears there is no viable legal consequences against the paramour for committing adultery in your marriage. However, adultery can and does impact the cheating spouse in divorce proceedings. Although Michigan is a no-fault state and the petitioner does not have to prove adultery to acquire a judgment of divorce, the existence of infidelity can impact the judge’s decision in determining a fair and equitable division of the marital property or awarding child custody:
- PROPERTY DIVISION: In Richards v Richards, 310 Mich App 683; 874 NW2d 704 (2015), the Michigan Court of Appeals upheld a 55/45 split of the property when it considered the defendant’s extramarital affair as a contributing factor to the breakdown of the marriage.
- ALIMONY: In Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), the Michigan Court of Appeals held that a wife was properly denied alimony due to her adulterous affair, among other things, occurring in the course of the marriage.
- CHILD CUSTODY: In Berger v Berger, 227 Mich App 700, 713; 747 NW2d 336 (2008), the Michigan Court of Appeals upheld the trial court’s finding against a defendant on “moral fitness” when determining best interests of the child for custody, finding that “defendant chose self-gratification over the children’s interests and lacked insight and judgment regarding the potential effect of his actions on others, including the children.”
Unfortunately, the circuit court does not have any jurisdiction whatsoever against third parties outside of the marriage relationship and cannot order damages or specific performance in the course of judicial proceedings. The judge can order one or both spouses to not have any romantic partners around the minor children under penalty of contempt of court. This contempt is only applicable against the spouse and not the paramour.
If adultery has affected your marriage, you should consult with a skilled lawyer about your rights before engaging in any rash decisions. Be sure to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC to answer your questions today.