My daughter is in the middle of a divorce and is being accused of having an affair. Her husband does have copies of hotel bills from my daughters credit card. The hotel bills are under the name of the man she allegedly had an affair with - who is actually someone she did contract-employee work for, in helping him set up a business. My question is: can her husband sue this other man for "alienation of affection"? That is what he is threatening. What does this mean? My daughter and I are very close and always have been. I know that she did not have sex with the other man, although it very well looks like she did. What are the chances that this evidence and information would be detrimental to her in regards to custody of their two children? She has been the stay at home mom for 5 years.
Yes, her husband can sue the other man. Nothing prevents him from filing a lawsuit. Alienation of Affection is a claim brought by the injured spouse against a third party The husband would have to prove that:
1. he and your daughter had enjoyed a good marriage and shared genuine love and affection,
2. that the employer started a relationship with your daughter which caused the demise of their marriage,
3. that the employer's decision to pursue your daughter and to carry on the affair was the controlling cause of the deterioration of the marital relationship;
4.that because of the employer's actions the love and affection between your daughter and her Husband was alienated and destroyed;
5.that the employer's pattern of conduct pursuing your daughter and the illicit affair intentionally or
recklessly caused foreseeable harm to the husband;
6. that the employer knew that his conduct was targeted, certain and inevitable to alienate the affection;
7. that his wrongful and malicious acts produced and brought about the alienation of your daughter and her Husband’s love and affection;
8. that his actions were outrageous, intolerable and offend against the generally accepted standards of decency and morality; and
9.that as a direct and proximate result, the husband suffered damages .
Alienation of affection are hard cases to prove and not common. More often not the litigation costs and fees outweigh any potential benefit.
Whether evidence of an affair would have a negative impact on custody is a very fact specific inquiry and with the little information you have shared much too difficult to say.
Based upon what you have shared though, I suggest that your daughter meet with an attorney to discuss her case. Many attorneys offer free initial consultations.
Good luck.
There are a couple major questions here, so let me address the "can he file an alienation of affection" case. Yes, he can. However, even in Utah at this time, that cause of action is not entirely persuasive. Judges tend to see those sorts of cases as really part of a divorce case. This means it's pretty unlikely he'll actually win anything, even if prevails on the merits of his allegations (i.e., proves she had an affair, which is actually pretty difficult to do).
Next is the question about whether adultery will hurt your daughter in her request for custody. The answer is it depends, but probably not. Adultery is a clear basis for divorce, so divorce is the primary remedy. Adultery does not necessarily make one a bad parent, however, so he would have to prove the adultery is keeping your daughter from being a good mother in order to gain any traction regarding child custody. Courts are loathe to punish someone for adultery alone. The factor much more pertinent to child custody is who has been the primary parent, and it sounds like your daughter has, so that's good for her.
Your daughter should really sit down with a good divorce attorney and discuss her situation in full. Many of us offer free consultations; take advantage of that.
