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Can you sue for adultery in Wisconsin?

We get asked this question quite frequently. Someone found that their spouse is cheating on them and now want to sue their spouse, or the person who had the affair with their spouse or press criminal charges. Can you sue for adultery?

Under s. 768.01, alienation of affections has been abolished, so the answer on the question of whether you can sue for adultery in Wisconsin is no.

768.01 ACTIONS FOR BREACH OF PROMISE, ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION ABOLISHED. “All causes of action for breach of contract to marry, alienation of affections and criminal conversation are hereby abolished, except that this section shall not apply to contracts now existing or to causes of action which heretofore accrued.”

That is the civil side of things. Can you be criminally charged if you engage in adultery? Well, at least in Wisconsin, technically you can be;

s. 944.16 ADULTERY. “Whoever does either of the following is guilty of a  Class I felony;

(1) A Married person who has sexual intercourse with a person not the married person’s souse; or

(2)  person who has sexual intercourse with a person who is married to another.”

Well, if it on the books, why aren’t more people charged with criminal adultery? I think the answer is a practical one, and unfortunately, is just a sign of the times we live in. Because adultery is so rampant in society and may be one of the main reasons that causes persons to get a divorce, there are not enough District Attorneys, courts, jails or prison to deal with thousands of individuals each year who engage in an adulterous relationship. It would also be a major proof problem to prove that a person had an adulterous affair. It would go back to the time prior to the Divorce Reform Act of 1977, where you needed “fault” to get a divorce, where persons would have to hire private investigators to tail their spouse to prove that they had engaged in an adulterous relationship.

I’ve been practicing family law for over 35 years and have yet to hear of a case where someone was criminally charged with adultery. I would be shocked to hear about it and if it ever did  happen, it probably would be only in a small rural county where  the district attorney wasn’t as busy as the ones here locally or in Madison who have more work, more cases, and bigger fish to fry.

While it may be unfair if your spouse has engaged in an adulterous relationship, from a civil perspective, other than divorcing your spouse, there is nothing you can do about it, and while you can lobby your local district attorney to criminally charge your spouse, chances are your appeal for criminal charges will go in one ear, and out the other of your local DA.

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