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Is it still possible to sue for alienation of affection when one partner in
a marriage has been reluctant to engage in intercourse with the other? The
Husband has reason to suspect a paramour. The wife has recently attempted
to refuse to honor her marital obligations and instead has claimed that the
husband does not have a right to access her whenever he wants. Does this
vary by state?
PN
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Peter Neenan wrote:
Is it still possible to sue for alienation of affection when one
partner in
a marriage has been reluctant to engage in intercourse with the
other? The
Husband has reason to suspect a paramour. The wife has recently
attempted
to refuse to honor her marital obligations and instead has claimed
that the
husband does not have a right to access her whenever he wants. Does
this
vary by state?
It does vary by state; a few states (Illinois, Hawaii, Mississippi, New
Mexico, North Carolina, South Dakota and Utah) still have "alienation
of affection" laws. Most states regard such laws as archaic and
obnoxious.
Your belief that Wife has "marital obligations" and that Husband has a
"right to access her whenever he wants" may be a problem, as even in
the states backward enough to retain alienation-of-affection laws,
courts may be so put off by that attitude as to refuse to countenance a
suit founded on such.
--
Not a lawyer,
Chris Green
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Peter,
You ask some questions about alienation of affection and also about a
wife's obligation to provide sex to the husband. Several years ago a civil
case was heard locally concerning alienation of affection, I believe the
plaintiff won but the damages were small. At the time most news stories
claimed that most states no longer had such laws. In your particular case
you seem to want to sue your wife rather than any presumed lover. I think
that alienation was used to punish the marital interloper so I don't see
that you have a case against your wife. You also seem to be looking for a
way of forcing your wife's sexual favors. I don't believe that any state
requires sex in marriage and that most states regard forced sex as rape.
These questions strike me as most peculiar. Sadly my advice is to seek
counseling or divorce.
Good luck,
Dave M.
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Peter Neenan wrote:
Is it still possible to sue for alienation of affection
Not in MD. That cause of action was abolished here decades ago.
Does this vary by state?
Yes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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| Is it still possible to sue for alienation of affection when one
partner in
| a marriage has been reluctant to engage in intercourse with the
other? The
| Husband has reason to suspect a paramour. The wife has recently
attempted
| to refuse to honor her marital obligations and instead has claimed
that the
| husband does not have a right to access her whenever he wants.
Does this
| vary by state?
|While laws vary from one state to another (I'm assuming you're in
the US), alienation of affections is generally disfavored as a cause
of action and has been barred in most states.
As far as the wife's right to refuse, it's universally accepted in
the US that a woman is not chattel and has the right to say "no" if
she chooses. There's no such thing as a "marital obligation" under
law, and there have been a number of well-publicized cases over the
past few decades holding that marriage to the victim is not a
defense against rape charges when the wife declines to participate
and is forced. In any case, why would someone want to have
intercourse with a person who doesn't want to and isn't enjoying it?
Bottom line is that the courts won't try to force someone to love
you, and you can't demand that a woman provide sexual services
against her will. Your alternatives are pretty much limited to
marriage counseling, divorce, or just living with it, as-is.
Eliyahu
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Peter Neenan wrote:
Is it still possible to sue for alienation of affection when one partner in
a marriage has been reluctant to engage in intercourse with the other? The
Husband has reason to suspect a paramour. The wife has recently attempted
to refuse to honor her marital obligations and instead has claimed that the
husband does not have a right to access her whenever he wants. Does this
vary by state?
PN
1. Common law "Alienation of affection" law suits are still possible
against the paramour by the injured spouse, but is discouraged in many
states (eg in NY it is a felony to waste the court's time by filing such
a civil suit). In any case if you cannot prove the identity of the
paramour you cannot file suit.
2. In most states spouses are not required to engage in intercourse (ie
the marital exception to rape laws has been removed in most states).
However, refusal to engage in intercourse for 1 year or more
(constructive abandonment) is cause for divorce in states that still
require cause for divorce (eg NY). If you live in a no-fault state, you
can file for divorce right away, but your rights in a divorce (important
if you want to fight for custody of kids) may be enhanced if can prove
constructive abandonment.
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Eliyahu Rooff wrote:
....
| ... The wife has recently attempted
| to refuse to honor her marital obligations and instead has claimed
that the
| husband does not have a right to access her whenever he wants.
....
... There's no such thing as a "marital obligation" under
law,
.....
Eliyahu
In New York State, refusal to have sex for a year or more
is grounds for divorce. It's called "constructive abandonment."
This could be construed to imply a sort of "marital obligation"
in the law, although the only remedy available is divorce.
(Note that NY does *not* have no-fault divorce, so grounds
are necessary if you want to divorce and your spouse doesn't.)
-- Alan McKenney
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On Wed, 22 Dec 2004 17:53:11 -0500, "Christopher Green"
<cj.green@worldnet.att.net> wrote:
. . . .
Your belief that Wife has "marital obligations" and that Husband has a
"right to access her whenever he wants" may be a problem, as even in
the states backward enough to retain alienation-of-affection laws,
courts may be so put off by that attitude as to refuse to countenance a
suit founded on such.
Not to mention that some states now have marital rape statutes
overruling any common law rules so suggesting.
Daniel Reitman
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<<Peter Neenan wrote:
Is it still possible to sue for alienation of affection when one
partner in
a marriage has been reluctant to engage in intercourse with the
other?>>
Why bother? Witholding affection is part of a valid divorce ground almost
everywhere, anyway.
SEFSTRAT
solo webpage: http://members.aol.com/sefstrat/index.html/sefpage.html
band webpage: www.timebanditsrock.com
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Peter Neenan wrote:
The
Husband has reason to suspect a paramour. The wife has recently
attempted
to refuse to honor her marital obligations and instead has claimed
that the
husband does not have a right to access her whenever he wants. Does
this
vary by state?
Not really. No state requires a wife to have sex against her will.
And most states have marital rape laws.
In any case, the "paramour" is just a symptom of trouble: he's not the
cause of the trouble....
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Daniel R. Reitman <dreitman@spiritone.com> wrote:
"Christopher Green" <cj.green@worldnet.att.net> wrote:
Your belief that Wife has "marital obligations" and that Husband
has a "right to access her whenever he wants" may be a problem,
I went into deep shock when I learned that a wife having to use a
punch clock and to file a daily activity report were not to be found
in common law
as even in the states
backward enough to retain alienation-of-affection laws, courts
may be so put off by that attitude as to refuse to countenance
a suit founded on such.
I don't agree that retention of alienation-of-affection laws is
an indicator of backwardness. The problem with these laws is that
they were abused so that a high percentage of divorces included an
alienation-of-affection suit. I believe AoA suits are appropriate
where the offended party can meet some rigorous standards of evidence.
Since I am not an attorney, I am in no position to deliniate those
standards.
Not to mention that some states now have marital rape statutes
overruling any common law rules so suggesting.
Rape connotes violence and violence shold not be condoned.
Dick
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Steve wrote:
<<Peter Neenan wrote:
Why bother? Witholding affection is part of a valid divorce
ground almost everywhere, anyway.
First of all, alienation of affection isn't about the divorce but
about suing the other party for damages for causing a spouse to change
his or her affection.
Second, California has only two grounds for divorce (called
dissolution): irreconciliable differences and incurable insanity.
Stu
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Dick Adams wrote:
I don't agree that retention of alienation-of-affection laws is
an indicator of backwardness. The problem with these laws is
that they were abused so that a high percentage of divorces
included an alienation-of-affection suit. I believe AoA suits
are appropriate where the offended party can meet some rigorous
standards of evidence.
In theory I agree with you. But as a practical matter it's difficult
to figure out just where to draw the line.
In addition, personally I'm a fan of personal responsibility. If your
spouse wants to run off with someone else, that should be his or her
right no matter how stupid it may actually be.
If your relationship is so shaky that someone can come along and do
something that ends up breaking it up, I think that should be between
you and your spouse.
Since I am not an attorney, I am in no position to deliniate
those standards.
Believe me, you don't want most attorneys to try to do that, either.
Stu
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In article <rj84t09shvddi5fg1t0phtleq7iglvg4nk@4ax.com>,
Dick Adams <rdadams@smart.net> wrote:
Not to mention that some states now have marital rape statutes
overruling any common law rules so suggesting.
Rape connotes violence and violence shold not be condoned.
The word "rape" carries a connotation of violence but rape
is becoming a non-violent crime under modern law. In Massachusetts
the statutory requirement that rape be "by force" has been
interpreted to include any action other than the man remaining
completely still[*]. When the Pennsylvania Supreme Court held
that force was an element of rape it was overruled by statute.
In New Jersey the courts have suggested that it ought to be the
man's burden to prove consent. In some states the "rape by fraud"
doctrine allows rape convictions for non-violent, consensual sex.
[*] The courts did overturn the rape conviction of a man who
stood still while the woman touched him.
--
John Carr (jfc@mit.edu)
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"John F. Carr" wrote:
The word "rape" carries a connotation of violence but rape
is becoming a non-violent crime under modern law. In Massachusetts
the statutory requirement that rape be "by force" has been
interpreted to include any action other than the man remaining
completely still[*]. When the Pennsylvania Supreme Court held
that force was an element of rape it was overruled by statute.
In New Jersey the courts have suggested that it ought to be the
man's burden to prove consent. In some states the "rape by fraud"
doctrine allows rape convictions for non-violent, consensual sex.
Frankly, I don't believe it. I want to see cites.
I know that in California the conditions required for rape are:
1. Use of force sufficient to overcome the victim's attempt to resist,
or
2. Use of threats sufficient to deter the victim from resisting, or
3. Use of alcohol or drugs to render the victim incapable of withholding
consent, or
4. Victim is a minor ("statutory rape" -- victim is legally unable to
give consent), or
5. Victim is a prisoner and rapist is in a position of authority over
her, or
6. Rapist pretends to be the victim's husband.
That last is the only example I'm aware of where someone could be
convicted of "rape by fraud". I'm also not aware of any recent cases
involving it, but I do remember reading about some convictions in the
first half of the 20th c.
--
I pledge allegiance to the Constitution of the United States of America,
and to the republic which it established, one nation from many peoples,
promising liberty and justice for all.
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In article <4nhot0t4tapepnv5vcf4i8bpr71f89u7rf@4ax.com>,
Barry Gold <barrydgold@comcast.net> wrote:
I know that in California the conditions required for rape are:
.. . .
6. Rapist pretends to be the victim's husband.
Rapist pretending to be the victim's wife doesn't count?
What about boyfriend/girlfriend?
(I know, there's a long slippery slope there, to celebrity, or casting
director, or . . .)
Seth
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Barry Gold <barrydgold@comcast.net> wrote:
. . .
Rapist pretending to be the victim's wife doesn't count?
What about boyfriend/girlfriend?
(I know, there's a long slippery slope there, to celebrity, or casting
director, or . . .)
AFAIK the law says "husband". In California you can only "rape" a woman
(or that was the case last time I read the law). Doing the equivalent
to a man is a different crime, although the penalties may be similar.
Other forms of fraud (pretending to be boyfriend, celebrity, etc.)
aren't rape. They might still be criminal fraud -- getting something of
value by intentional deception. A little tricky -- you have to get
something "of value", and in legal theory a sex act does not have value
-- at least, not unless performed in return for a promise of something
else of value, i.e., an act of prostitution.
--
I pledge allegiance to the Constitution of the United States of America,
and to the republic which it established, one nation from many peoples,
promising liberty and justice for all.
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In article <nj9ju05fqqdr6gmbfg5knkpkjcls2g4am9@4ax.com>,
Barry Gold <barrydgold@comcast.net> wrote:
Other forms of fraud (pretending to be boyfriend, celebrity, etc.)
aren't rape. They might still be criminal fraud -- getting something of
value by intentional deception. A little tricky -- you have to get
something "of value", and in legal theory a sex act does not have value
-- at least, not unless performed in return for a promise of something
else of value, i.e., an act of prostitution.
And since that's illegal, the presumption has to be that there was no
value assigned by either party. (If it were claimed that the sex act
had value, the _victim_ would be commiting the crime of prostitution.)
Seth
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