Alienation of Affection Law

An alienation of affection, or spousal alienation lawsuit is one that is brought against a third party, a person who is outside of a marriage. Also known as the “heart balm” or “homewrecker” tort, spousal alienation usually involves a cheating spouse and their non-marital partner, a third party.

An example of this would be a love triangle, where one spouse has been secretly conducting an adulterous relationship. The spouse who has been the victim of the other spouse’s infidelity would file a lawsuit against the third party for alienation of affection.

Less common, but still done, are cases involving other third parties such as in-laws, members of the clergy, therapists, and parents. Anyone outside the marriage who has interfered with it may be named as a defendant in a civil lawsuit. It is not required that the third party has had an adulterous, romantic relationship with the spouse whose affections have been alienated.

The harm alleged in a suit for alienation of affection is not physical harm, of course, but harm to the victim’s dignity and reputation. Also, the victim can allege negligent or intentional infliction of emotional distress.

How Common Are Alienation of Affection Lawsuits?

Most states have eliminated the cause of action for alienation of affection. The contemporary attitude adopted in 43 of the 50 states seems to be that all is fair in love and war.

Alienation of affection lawsuits have been abolished in all states except the following seven where it is still recognized:

• Hawaii;
• Illinois;
• New Mexico;
• North Carolina;
• Mississippi;
• South Dakota;
• Utah.

Adultery and divorce are much more common in modern society, so these types of lawsuits have dwindled in frequency. If a person does not live in one of the seven states that still recognizes the tort of alienation of affection, it may still be possible to file a lawsuit. An experienced family law or personal injury attorney may best advise a person on their options.

Part of the problem is not only that adultery and divorce become increasingly common, but also success with an alienation of affection lawsuit requires proving that a marriage was healthy and characterized by a loving, caring relationship before the defendant appeared on the scene and alienated one spouse’s affections. Realistically, if one spouse turns to a relationship outside of a marriage, it is highly likely that the marital relationship was less than ideal, and it may well have been “on the rocks,” so to speak.

What Do I Have to Prove in My Alienation of Affection Claim?

According to alienation of affection state laws, the injured spouse must prove the following four elements to succeed with their lawsuit:

1. There was some degree of love between the person and their spouse;
2. The spouse’s love and affected was alienated, or destroyed;
3. The conduct of the third party caused or contributed to the alienation of the spouse’s affection. It is not necessary to allege intimate relations between the spouse and the third-party defendant. Other types of actions could be enough to support the claim;
4. The wronged spouse suffered compensable harm as a result of the alienation of their spouse’s affection.

Usually, a person does not need to prove that the third party intended to destroy their marriage, only that the acts they engaged in would have a foreseeable, negative effect on the marriage. A person also does not need to prove that their marriage was a perfect one, only that there was some amount of love between the person and their alienated spouse.

The civil wrong of criminal conversation is a companion tort to alienation of affection. Success with a claim of criminal conversation requires proof that the alienated spouse and the third-party had a sexual relationship. Again, success with a claim of alienation of affection does not require proving a sexual relationship or even a non-sexual romantic liaison, because alienation of affection can be claimed against anyone who might have turned a spouse against their marriage.

If a person is successful with their claim of alienation of affection, then they could be awarded compensatory damages. The damages would be to compensate for loss of consortium, mental anguish, humiliation, and possibly punitive damages, if the conduct of the defendant third-party was especially condemnable. Usually, however, in a lawsuit of this type, proving conduct that would justify an award of punitive damages would be challenging at best.

What Are the Possible Defenses to Alienation of Affection?

Possible defenses available in an alienation of affection lawsuit are as follows:

• Lack of Affection in the Marriage: The obvious defense would be that the marriage was not a happy one and the adulterous spouse turned to an outside relationship because of their unhappiness in the marriage. The marriage does not have to be perfect, but evidence of constant fighting, lack of time spent together, prior separations, and possible other adulterous affairs tends to show significant unhappiness. Still, the fact that there were problems in the marriage do not, on their own, establish a defense unless such unhappiness had negated all affection between the spouses.
• Consent of Plaintiff: It is unusual but possible to show that the spouses involved had an “open” marriage or engaged in spouse-swapping type relationships and that the plaintiff consented to the adulterous affair;.
• Connivance: Connivance would essentially mean that the outside party was tricked into having the affair so that it would lead to the end of the marriage. This is rare;
• Acts Post-separation Only: The idea here is that the alienating conduct occurred only after the spouses separated so they cannot be the basis for a claim of alienation of affection;
• Lack of Knowledge: The defendant could claim that he did not know the spouse of the victim was married:
• Poverty of Defendant: If the defendant establishes that he or she is essentially destitute, then a case for alienation of affection is essentially not worth the time, expense and effort it would take to prosecute it. People do not have insurance for this kind of thing, which would pay a judgment if the plaintiff obtained one. So, there may be little point in going forward if the defendant would not be able to pay damages.

Note that it is not a defense that the unfaithful spouse consented to the defendant’s conduct.

This last defense, poverty of the defendant, may often be the factor that leads to an alienation of affection settlement. Again, people do not carry insurance coverage that would pay a judgment even if the plaintiff were to obtain one. It would not be covered by a person’s homeowner’s insurance or auto insurance.

So, unless a defendant is quite well-off, any judgement the plaintiff were to win might go unpaid. This hard truth could motivate a plaintiff, the injured spouse, to settle a lawsuit out of court before trial for a sum of money that the defendant could afford to pay.

Do I Need an Attorney?

Since alienation of affection claims are not as common as they once were, it is a good idea to consult with an experienced family law attorney and/or a personal injury attorney. They will be able to help you determine whether or not you have a case. They can also help you decide your best course of action based on your circumstances.