Introduction to Alienation of Affection
Alienation of Affection is a cause of action available in some jurisdictions in the United States that allows a person to sue for damages against a third-party that caused or induced the alienation of affection in a marital relationship. The law provides that love and affection may be withdrawn from one spouse and given to another. If the jury finds that the defendant’s misconduct intentionally contributed to the estrangement of the husband and wife, they may assess damages against the third party.
The law is powerful and insightful , but its origins are somewhat nefarious and influenced by the court system of old. There was a time when marriage was more of an economic institution. Husbands were the breadwinners, and wives were the homemakers. Women had few options for legal recourse if their husbands were unsatisfactory. In onerous arrangements, in many areas it was acceptable to seek out legal recourse against the mistress as a means to recover the household losses. At some point, perhaps looking too far into the past, the "American courts simply adopted as though they were sound principles of common law the more flagrant rules of English common law." Dobbins v. Bank of Wilkes County, 194 S.E.2d 521 (N.C. Ct. App. 1973).
List of States with Alienation of Affection Laws
As of my writing this article, there are nine states where alienation of affections is still a viable legal claim: North Carolina is the leader in alienation of affections claims. It recognizes both the cause of action and the damages available under the tort laws. Several of the notable alienation of affections cases are from the state: Mississippi is another state where the alienation of affections tort is recognized. MCP v. Hederman Cement, 210 So. 3d 968 (Miss. 2017). New Hampshire recognizes the tort but does not allow recovery for damages similar to loss of consortium. Milligan v. Laramee, 521 A.2d 978 (N.H. 1987). New Mexico recognizes the tort and the damages available under the tort. The case of Romero v. Murdock, 581 P.2d 482 (N.M. 1978). South Dakota is another state that has held the tort of alienation of affections to be valid. Johnson v. Hassel, 59 N.W.2d 434 (S.D. 1953). Utah also recognizes the cause of action. One of the leading cases is Harris v. Smith, 157 P. 270 (Utah 1916). Michigan is one of the more recognized cases where alienation of affections was a factor. See Blake v. Blake, 182 N.W.2d 36 (Mich. 1970). West Virginia also recognizes the cause of action and allows recovery. Syllabus Point 1, Egnor v. Beasley, 164 W.Va. 729 (W.Va. 1980).
How Alienation of Affection Laws Are Applied
When a plaintiff brings an alienation of affection claim, they will first file the claim in the appropriate state court. Upon filing the claim, the defendant (the spouse’s boyfriend or girlfriend) will be notified of the claim, and both parties will be given the opportunity to present their case to a judge and potentially a jury. When the claim is filed, the defendant may choose to respond or to not respond to the claim. Most defendants will make a court appearance and respond because of the potential for damages from a claim.
The first thing that a plaintiff must prove is that their spouse was not at fault for the breakdown of the original marriage, and by proving this, they can then show the defendant’s influence on their spouse. The burden of proof on the plaintiff will depend on the state where the claim is filed. For example, in some states, it is reasonably clear based on court cases that the standard is the civil tort of "beyond a preponderance of the evidence." In some other states, the law is not as settled for alienation of affection claims, and therefore if those claims are filed in those states, the court would decide what burden of proof to use. Where the law is not well-settled, many attorneys advise their clients not to file the claim in an alienation of affection state because if they lose, they are likely to be required to pay the defendant’s attorney’s fees and the plaintiff will have a civil record.
There are generally several key pieces of evidence that an alienation of affection plaintiff can use in their case. The first is a copy of the plaintiff’s original marriage certificate. This is often supplemented by evidence of a family’s history or genealogy charts to confirm the validity of the original marriage. The next piece of evidence is some type of exhibit that shows the breakdown of the original marriage. One of the commonly used documents is a copy of the original complaint for divorce that sets out the grounds for the divorce. In addition to that, the plaintiff will often use a copy of the plea entered into by the plaintiff for either a divorce by agreement or a jury trial. This would also be supplemented by evidence that the agreement was approved by a judge. The most important part of this requirement is to have strong evidence that clearly shows that the plaintiff was not guilty of any wrongdoing and did not contribute to the breakdown of the marriage.
Finally, the last and most difficult element to prove is to show that the defendant had a substantial effect on the breakdown of the plaintiff’s marriage. Some examples of evidence for this requirement could include photographs of the third party with the plaintiff’s spouse, evidence of phone calls or text messages between the defendant and the plaintiff’s spouse, letters or emails between the defendant and the spouse, or even someone who witnessed the defendant’s actions on behalf of either party. However, the majority of the evidence that would be used for an alienation of affection claim would likely be electronic communications from the defendant.
Harm and Punishment
If a plaintiff wins an alienation of affection lawsuit, the plaintiff will be awarded damages. The specific damages awarded can vary based on the situation of the family involved. Sometimes the damages awarded are referred to as "reparations."
For example, if a wife’s parents successfully sue the wife’s boss for alienation of affection, the wife and her husband may be entitled to compensation for past and future loss of consortium (the right to enjoy the benefits of being married to one another). A judge may order some combination of compensatory and/or punitive damages.
Compensatory damages are meant to restore a victim to their original condition, before the offense took place. Punitive damages are meant to punish the offender for egregious offenses and deter them from committing similar acts in the future.
Alienation of affection has largely fallen out of favor in the United States but legally exists in seven states. In Maryland, a jury awarded $3.6 million to a physician after his wife’s former lover harassed and assaulted him. An appellate court later concluded "awards of this magnitude have a very strong tendency to be shocks to the conscience" and reduced the damages to $500,000.
In North Carolina, a woman received more than $8.8 million from the man she accused of stealing her husband. It was the largest alienation of affection award granted in the state’s history.
Criticism and Controversy
Alienation of affection remains controversial in the United States. Critics of the tort argue that it encourages spouses to continue loveless marriages. But it is the legal concept’s place on the brink of gender discrimination that is at the center of most debates.
Women have, for the most part, been the ones responsible for filing most alienation of affection claims. In 2014, 59% of the claimants were women, though many scholars question whether this actually reflects the larger reality. More importantly, critics argue that the chances of being sued in an alienation of affection suit foster gender discrimination. Employees who need to make recruitment pitches are hesitant to ask a male employee’s wife to "help" with the public image of the husband. There is also the idea that because women are the ones awarded damages in these cases, they are seen as more likely interested in money for their emotional involvement than are men in the same situation. Some believe this leads to a subconscious bias for what women employees can deliver to a company. And victims of the tort argue that in addition to losing their family, cheating spouses can be further humiliated by such lawsuits . In 2001, North Carolina legislature repealed its sexual seduction laws, a legal relic dating back to the 17th century. George Holding, North Carolina Congressman, said about repealing the law, "We no longer execute women for killing their children. We’ve moved on from the crackdown on pot. This is just one of those issues that we’ve moved beyond." Yet, in the same year, the state voted on to keep alienation of affection laws. Surely, restrictions placed on violating spouses can lead to unnecessary hostility. Rob Griswold, a New York attorney, says that, since the parties are often now married, it can make custody and visitation a little more complicated. Sometimes, the "blame" will fall on the spouse alleging alienation of affection, and this can sour their relationship with the children. Since it is a tort law, there is a fear that this could lead to "vigilante justice". Despite the controversies and criticisms surrounding these laws, few have had any effect on changes to alienation of affection laws. Because at the end of the day, for some states, personal relationships are simply business.
What is the Legal Alternative to Alienation of Affection Laws
The absence of alienation of affection laws in most U.S. jurisdictions does not mean that a couple seeking damages from a third party for destroying their marriage is left with no recourse. On the contrary, there are plenty of other legal options that an attorney can discuss with the wronged individual.
A close relative of alienation of affection, intentional infliction of emotional distress (IIED) is a tort claim that the affected spouse may pursue against the third party. In effect, the claim is that the defendant has caused intentional emotional harm, as opposed to interfering with the marriage contract. Because IIED allegations are of intentional conduct, not breach of contract, a spouse who even innocently has an affair with a married person can be liable. The only issue is whether the defendant’s actions were so outrageous as to be actionable.
Intentional interference with a marriage contract is essentially the same thing as declaring alienation of affection, with the primary difference being that the former is not recognized in every state. This action claims that the marital contract has been breached and allows either spouse to file the lawsuit, as opposed to just the innocent spouse, as in the case of alienation of affection. Often filed concurrently with an IIED claim, this action is more suited to cases where one spouse was not totally faithful, or where marital reconciliation has failed and divorce is imminent. Because the claim can be made against the offending spouse as well as the third party, the parties will have an incentive to settle rather than litigate.
An additional option to alienation of affection is the loss of consortium claim, which asserts that the plaintiff has lost a greater part of his or her life because of sex or affection deprivation due to the actions of the third party. These claims are less about the hurtful actions of the third party than they are about the hurt to the innocent spouse from the defendant’s interference with the marital relationship.
Conclusion and Thoughts on the Law
In conclusion, alienation of affection laws in the United States present a complex and often contentious area of the law that considers emotional damages resulting from third-party interference in a marital relationship. The concept of affections lost because of cruel intentions or malicious torts may seem foreign to many—it is certainly an idea that has become less mainstream due to changing views on divorce and personal privacy . Yet these laws remain in recent history, with cases like the much-publicized "lost love" suit of Howard and Bo James, which ultimately led to the Jameses receiving $750,000 from Bo’s former college roommate in 2016.
It is unclear whether alienation of affection will fade into obsolescence in American law for good, but the possibility is increased as divorces become more reputable and acceptable, as well as the greater treatment of extramarital affairs as a private affair subject to particular couple’s discretion.