The U.S. is unusual here because adultery can still technically be a crime in a small number of states, while a different and much smaller group allows the injured spouse to sue the affair partner in civil court.
Because these laws change and some old statutes are constitutionally questionable or rarely enforced, I checked current 2026 sources. As of August 2026, here’s the practical picture.
- States where adultery is still a criminal offense
Current sources identify 16 states that still have criminal adultery laws on the books:
Alabama
Arizona
Florida
Georgia
Illinois
Kansas
Maryland
Michigan
Mississippi
North Carolina
North Dakota
Oklahoma
Rhode Island
South Carolina
Virginia
Wisconsin
The severity varies substantially:
State - Classification
Michigan Felony
Oklahoma Felony
Wisconsin Class I felony
Alabama Misdemeanor
Arizona Misdemeanor
Florida Misdemeanor
Georgia Misdemeanor
Illinois Misdemeanor
Kansas Misdemeanor
Maryland Misdemeanor
Mississippi Misdemeanor
North Carolina Misdemeanor
North Dakota Misdemeanor
Rhode Island Misdemeanor
South Carolina Misdemeanor
Virginia Misdemeanor
For example, Michigan’s statute makes adultery a felony punishable by up to five years; Oklahoma allows up to five years and/or a fine; and Wisconsin makes it a Class I felony with a maximum of 3½ years and a $10,000 fine.
But there is a very important distinction: the existence of a statute does not mean that a cheating spouse is realistically going to be prosecuted. Civilian prosecutions for adultery are extraordinarily uncommon, and many of these laws are essentially dormant.
Also, the fact that a state criminalizes adultery doesn’t generally give the betrayed spouse the right to personally prosecute the cheating spouse. Criminal charges are brought by the government.
What about fines?
Where adultery is a misdemeanor or felony, the government, not the injured spouse, imposes whatever criminal fine the statute permits. The betrayed spouse generally doesn’t get that money.
That’s different from a civil lawsuit, where the injured spouse can potentially recover money damages.
- Can the betrayed spouse sue the cheating spouse for “adultery”?
Generally, no.
The traditional criminal offense of adultery isn’t ordinarily a private civil cause of action against your spouse. Most states have abolished the old “heart balm” lawsuits that allowed spouses to seek damages over marital misconduct.
There are, however, two important exceptions to understand:
Divorce/family-law consequences
Lawsuits against the third party—the affair partner
The first is much more common.
Adultery can affect issues such as alimony/spousal support and, depending on the state and circumstances, property division or other aspects of divorce. That’s very different from receiving a tort judgment simply because someone cheated.
- Can you sue the “other person”?
Yes, but only in a very small number of states.
This is where alienation of affection and criminal conversation come in.
As of 2026, the clearest current list of states recognizing these types of claims is:
Hawaii
Mississippi
North Carolina
South Dakota
Utah
There is an important recent development: New Mexico abolished alienation-of-affection claims in January 2026, so older lists that include New Mexico are now outdated.
Illinois is another state you’ll frequently see on older lists, but it abolished its alienation-of-affection cause of action in 2016.
- What is “alienation of affection”?
This is a civil lawsuit against the third party.
The theory is essentially:
“My marriage had genuine love and affection, you intentionally interfered with it, your interference caused my spouse’s affection to be lost, and I suffered damages.”
The defendant can be the affair partner, although the tort theoretically isn’t limited to romantic partners.
The plaintiff generally has to establish things along the lines of:
There was genuine love and affection between the spouses.
That affection was subsequently lost or diminished.
The defendant’s wrongful conduct caused or contributed to the loss.
The defendant’s conduct was intentional or wrongful under that state’s law.
The precise elements vary by state.
And importantly, you don’t necessarily have to prove merely that sex occurred. Alienation of affection focuses on the destruction/interference with the marital relationship.
- What is “criminal conversation”?
Despite the alarming name, criminal conversation is a civil tort, not a criminal prosecution.
Historically, it essentially meant:
A third party had sexual intercourse with someone’s spouse.
It is therefore much closer to a civil lawsuit for adultery against the outside person.
Cornell’s Legal Information Institute describes it as a common-law tort allowing a spouse to sue a third party for sexual intercourse with the spouse.
So you can have a situation like:
Husband + Wife + Affair Partner
The wife might potentially sue the affair partner, rather than suing her husband, depending on the state’s law.
Some jurisdictions recognize both alienation of affection and criminal conversation, which can allow the same affair to generate different theories of liability.
- North Carolina is particularly important
North Carolina is probably the most notable state for this because these lawsuits are still actively litigated there.
North Carolina expressly provides procedures for both:
alienation of affection, and
criminal conversation.
Its statute also imposes important restrictions. For example, conduct occurring after the spouses physically separated with the intent that the separation be permanent generally cannot serve as the basis for these claims, and the action has a three-year limitations period from the defendant’s last relevant act.
So the timing and circumstances of the marriage matter enormously.
- Can you recover a “fine” from the affair partner?
Not technically a fine.
A fine is a criminal punishment paid to the government.
In a civil case, the plaintiff can potentially receive:
compensatory damages, damages for loss of the marital relationship, emotional/distress-related damages where permitted, potentially other consequential damages, and in appropriate cases, punitive damages.
Those are damages awarded to the plaintiff, rather than criminal fines paid to the state.
Some of these cases have resulted in extremely large verdicts, although that doesn’t mean a typical plaintiff will receive millions of dollars.
- The really important distinction
There are actually three different legal questions:
Situation Typical legal result
Spouse cheats Usually not a civil lawsuit for “adultery”
State has adultery statute Government theoretically can prosecute, although prosecution is extremely rare
Spouse cheats and divorce follows Adultery may affect divorce/alimony depending on state
Affair partner interferes with marriage Usually no lawsuit, but a handful of states recognize alienation of affection
Affair partner has sex with spouse In some states, criminal conversation allows civil damages
Criminal adultery conviction Fine goes to government, not betrayed spouse
Successful civil tort case Damages can go to betrayed spouse
- One particularly interesting wrinkle: where the affair happened
If you’re asking this because you’re considering an actual lawsuit, the state where the plaintiff lives isn’t necessarily the only relevant state.
For example, questions can arise about:
where the marriage was located,
where the spouses lived,
where the affair occurred,
where the affair partner lived,
where the marital relationship was damaged,
whether the parties subsequently moved,
whether the defendant can be sued in that state, and
whether that state’s court will apply its own law or another state’s law.
That can make the answer substantially more complicated than simply saying “the plaintiff lives in North Carolina.”
And Utah is currently in transition, so I would be particularly careful about relying on older articles listing Utah without checking the effective date of the 2026 legislation.
Bottom line
If your question is “Can a betrayed spouse sue the affair partner?” — yes, but in 2026 that possibility is essentially limited to a handful of states, principally Hawaii, Mississippi, North Carolina, South Dakota, and Utah.
If your question is “Can the cheating spouse themselves be criminally prosecuted?” — technically yes in about 16 states, including Michigan, Oklahoma and Wisconsin as felony jurisdictions, but actual civilian prosecutions are extraordinarily rare.
If you tell me which state the married couple lived in, which state the affair partner lived in, and where the affair occurred, I can look at the jurisdictional rules and explain whether an alienation-of-affection or criminal-conversation lawsuit could actually be brought, what would have to be proved, the statute of limitations, and what damages could potentially be recovered.