By: LINDSEY O'NEILL, ESQ.
The reports are all over the media of how Tiger Woods apparently carried on an affair with his mistress, Jamiee Grubbs, for almost three years! Some reports (mostly tabloids at this stage) quote Jamiee as stating that Tiger would visit her every few months and they'd "enjoy each other's company." Aside from the issue of what can be in a husband's (or wife's) mind when cheating... what is the deal with these women who go along with these full-blown affairs with men they know are married?
I've written previously about the idea of whether or not you should be able to sue the person who has an affair with your spouse or partner... and your comments are greatly appreciated and insightful. In that post, I intentionally focused on the situation of carrying on an all-out affair with full knowledge that the other person was married. In the business world, one can be held liable for tortiously interfering with a business relationship. For instance, if a person convinces another to break his/her business promises or contracts, or prevents a business person from living up to the same, the meddler can be held liable to the injured party who did not receive the benefits of the business relationship. Should there be a similar legal concept for marital relationships? Isn't that what these cheating partners do?.... convince a husband to break his marriage promises, interfere with the husband's marital relationship, preventing the wife from receiving all the benefits of the marriage relationship to which she is otherwise entitled?
If liability was imposed for interfering with a marriage relationship, would it deter people from having affairs? Does it matter if, in the instant example, Tiger pursued the other woman... or if the other woman seduced Tiger? Does the length of the affair play a role in calculating "culpability"? What about mitigating circumstances? For example, would it matter if Tiger and his wife had been having marital problems? If mitigating circumstances would be a factor, what kind of circumstances would have any weight? These are probably the kinds of issues people already think about when dealing with an affair from the emotional, psychological, and perhaps even financial side of things.
The reality today, however, is that its not illegal to have an affair. Nor is it necessarily something for which you can be sued. However, this was not always the law. In fact, at one time almost all states recognized the ability for a victimized spouse to sue the interfering lover for "alienation of affection" or "criminal conversation." Today, however, with no-fault divorce and modern views on marriage and infidelity, state laws holding the affair-partner liable to the jilted spouse have fallen by the wayside for the most part (though apparently one can still sue in some states).
To the extent affairs are on the rise and marriages (and families) are suffering as a result, do you think the law might change back to favoring these kinds of actions? Does the marriage relationship deserve more "legal protection" against would-be interferers? If so, what would any "model legislation" look like? What consequences would an affair-partner be faced with if found liable? What would the betrayed spouse have to prove to successfully hold his/her spouse’s lover liable for damages? Here are some thoughts on what elements of the crime might look like to get you started thinking about the issue: (1) that the marriage was valid and true affection did in fact exist in the marriage; (2) that such affection had in fact been destroyed by the affair; and (3) that the affair partner knew of the marriage and, by virtue of continuing the affair caused or contributed to the impairment of the marital relationship? What would constitute an “illegal” affair? Would actions be limited to only physical affairs (sexual intercourse or “sexual relations”) or would emotional affairs be actionable as well?
On the other hand, what are the arguments that its not appropriate to hold an affair-partner liable for damages to the betrayed spouse? Would allowing these types of claims encourage revenge? Should the law really attempt to regulate the ins and outs of romantic relationships? Perhpas relationships between spouses, and for that matter relationships between lovers, are too complex to be deconstructed into legal elements. Should the sexual activities of consenting adults remain private - free from being publicized in a court room? Also.... if these types of lawsuits were allowed, and affair-partners were held financially liable to the injured spouse... and then the spouses get back together again?
Interesting arguments on both sides. After reading so many of your comments, it is clear to me that a betrayed spouse certainly is left without a legal remedy.... without a "day in court" .... against a man or woman who intentionally interferes with his or her marriage. Tiger's wife can only renegotiate her prenuptual agreement... she has no direct remedy against the woman who intentionally, and seriously, caused her injury.
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