Alienation of Affection Defined
Alienation of affections, or alienation of affection, laws allow a person to bring an action for the alienation, or loss, of love, affection, consortium, or a marital relationship. Typically, these cases are brought against a third party for having "stolen" the affections of the alienated spouse . The original rationale of these laws was to promote societal interests of encouraging happy marital and family relations, discouragement of adultery, and in certain jurisdictions, the protection of property rights in the family unit. The more modern view is that these statutes impose liability in a state based on purely personal reasons, punishable as a form of emotional negligent infliction of injury.
States That Recognize the Alienation of Affection Tort
Currently there are 10 states that still recognize the right to sue for alienation of affections. They are: Hawaii, Idaho, Kansas, New Mexico, North Carolina, Mississippi, Missouri, South Dakota, Utah and West Virginia. The last state to abolish the law was Tennessee in 2011. New York offered an interesting tidbit in that its highest court abolished the cause of action in 1939 but the New York City Civil Court has held "that it will continue to recognize claims for alienation of affection until the legislature decides otherwise." (Stalling v. Smith, 2011 NY Slip Op 51810(U).)
While these laws have become rare, some recent cases provide some evidence that these recalcitrant states may not have as much impact on the rest of the country as in the past. Some 80% of the world’s nations have done away with these torts but that wasn’t always the case. Mississippi’s statute was passed in 1868, Kansas’ in 1951, Hawaii in 1974, as well as Utah in 1977. Even within the last 30 years, Michigan held that alienation of affections is a viable cause of action in one case (Kelley v. Ecker 1995 Mich. App. LEXIS 415 (Mich. Ct. App.)). With these laws so rarely the target issue in any one case, it’s also interesting to note that none of the most recent cases in the last 40 years came from a Supreme Court level. Only North Dakota’s 1951 alienation of affections law originated with the state Supreme Court.
North Carolina is best known for Brotherton v. Cleveland, 106 N.C. App. 481, 417 S.E.2d 25 (N.C. App. 1992), where the court reinstated this cause of action after having eliminated it in 1976, ruling that it was "patently unfair". The North Carolina Supreme Court has never taken this decision. In a report covering the 2013 legislative session, this state’s largest newspaper, The News & Observer, stated: "A bill to repeal the long-abolished common law right to sue a third party for alienation of affections had strong bipartisan support. An altered version passed the House but failed to get out of the Senate Judiciary II Committee."
Mississippi also remains a state where the issue got onto the docket even more recently than North Carolina, although the Mississippi Supreme Court meted out a unanimous and decisive ruling in telling parties that their day in court was over. In 2010, in Life and Casualty Insurance Company of Tennessee v. Mosley, the court wrote that over the years the legislature "has addressed the dismantling of both the heart balm actions. Despite the fact that neither is as common a cause of action as it once was, the legislature has not repealed either. Migration from one area of the country to another may obviate the need for heart balm, or it may not," the justices wrote. It was the courts, the justices ruled, that abolished alienation of affections, not the lawmakers.
Legal Process
The legal process of filing an alienation of affection lawsuit typically begins with the injured spouse meeting with an attorney to discuss the circumstances of the case. If the attorney agrees to take on the case, he or she will file a complaint with the court, and the other party will be notified so that they can respond with an answer and then take part in the discovery process. Once the discovery process is complete, a trial will be held.
Alienation of affection cases usually require the injured spouse to prove four elements in order to have a successful claim. These elements are: 1) the legal marriage between the plaintiff and the defendant, 2) the loss of affection between the spouses, 3) the wrongdoing of the third party that caused the loss of affection, and 4) the loss of affection was caused by the defendant’s actions.
Therefore, the defense can argue any of the above four points and break the chain of causation. If any point is broken, the entire case against the defendant will collapse.
Filing an alienation of affection lawsuit does not require a spouse to file for divorce, and it can take place at any point during a marriage when the injured party feels that the love and affection has been irretrievably lost. However, evidence of any subsequent sexual relations between the two spouses following the loss of affection may be used to disprove the damages of the alienation of affections lawsuit that the plaintiff has brought, as some courts see the reconciliation between the spouses as evidence that the original loss of affection was not a permanent issue.
Additionally, many jurisdictions require that the alienation of affection case must be filed prior to filing for divorce. Therefore, if the injured party does file for divorce before the alienation of affection case is resolved, the whole case could be dismissed.
Controversy and Critique
Critics of alienation of affection laws argue that they are based on outdated notions of marriage and possessiveness, and that they perpetuate a system that allows victims to seek satisfaction through the penalization of a third party who was not originally responsible for the marriage breakdown. They add that these laws can encourage friction between all of those involved and can unnecessarily complicate divorce proceedings. Many of the states that have abolished these statutes cite these reasons.
Other critics maintain that once parties separate they should be free to pursue new relationships without the threat of a lawsuit. For decades, multiple states including California, Pennsylvania, and Mississippi have rejected the idea that a spouse honor a prior marital commitment after they have decided to end their relationship, with California courts noting "that the marital community is broken by separation and divorce and that the goal should be for the couple to make a "fresh start" in life."
In 1964 , California eliminated both adultery and the "civil death" of divorce (in which the dissolution of a marriage estranged the parties and placed them both in "a so-called legal limbo") from its code due to a growing belief that such laws were anachronistic and contrary to a modern view of morals. Some credit this to a growing belief that the process of divorce bestow upon parties some modicum of authority to choose how they should act post-divorce, regardless of their prior agreements, and this lessen the chances of harmful litigation.
Proponents counter that abolishing these provisions plus the elimination of alienation of affection laws deprives the innocent spouse of the enjoyment of the marriage while allowing fault to go unpunished. They also maintain that these laws encourage parties to seek counseling rather than become embittered when they picked up the pieces post-divorce. Instead of using lawsuits to seek vindication, however, advocates say that couples should be given the opportunity to bicker over who receives the marital property rather than who gets to keep their spouse’s paramour.
Interpersonal Relationships and Tort Law
The impact of alienation of affection suits on personal relationships can be significant. Generally speaking, such lawsuits place the blame for a couple’s marital breakdown squarely on the shoulders of the third party. In effect, alienation of affection suits create an intra-familial conflict where the couple damages their friendship with the third party. Complicating matters, in most cases the third party is closely tied to the marital relationship because the third party is the friend or relative of one the individuals in the divorcing couple. The third party may have either encouraged or provided marital advice to the couple under the presumption it would strengthen their relationship. When the couple later blames the third party, the natural perception is that the couple feels betrayed by the person they initially saw as a confidant.
Cases involving alienation of affection, like all other civil suits, are public matters and may result in the release of information or allegations that further harm the parties involved. These implications may serve to keep a couple from filing an alienation of affection lawsuit where they might otherwise consider one to regain some semblance of justice.
In virtually all of the remaining jurisdictions that allow alienation of affection lawsuits, these suits have rarely received the court attention witnessed in past decades. For example, in July 2002, an Illinois man was awarded $9 million by a jury for alienation of affection after it found his brother’s ex-wife had poisoned his relationship with their children. A $2.2 million alienation of affection award was entered in September 2002 for the seduction of a man’s wife by her boss, but the appeals court vacated the judgment on procedural grounds, and the case was later settled.
Although alienation of affection cases are perhaps few and far between, there are notable exceptions, and important legal precedents that can have a distinct impact. Courts can award damages for the loss of the marriage itself or for consequential damages resulting from the breakup, such as emotional injury, loss of support and disfigurement or impairment to your spouse.
Many states, including North Carolina and Hawaii, have abolished this type of tort. Other states have passed statutes which limit potential damages. Many other states’ courts have rejected these lawsuits as against the public policy of difficult to define interference with a marriage.
One state, Tennessee, recently abolished the tort in 2012. In Rogers v. Wizmiller, — S.W.3d -, 2012 WL 1155719 (Tenn.), the Tennessee Supreme Court abolished the tort for the following reasons: The common law remedy was too uncertain and unpredictable and more problematic than helpful; the passage of time has changed the nature of marriage; the fault-based grounds for divorce, which served the same purposes as the tort, were abolished; judicial resolution of the nature of marriage or divorce are improperly intruded on legislative authority; and the state’s interest is aligned with enforcing laws that criminalize adultery. Though Tennessee courts noted that plaintiffs would still be able to bring a small number of causes of action, the court was unsure what those were.
The Future of Alienation of Affection Laws
The future of alienation of affection laws across the United States is uncertain, given the evolving legal landscape and shifting public attitudes. As more states have moved to abolish these laws, those that remain have come under increasing scrutiny. Critics argue that alienation of affection laws are an anachronism, based on outdated notions of marriage and property rights. They contend that these laws are often used to unfairly punish individuals who have had extramarital affairs without addressing the underlying issues in a marriage, such as emotional or physical abuse.
Despite these arguments, proponents of these laws believe that they serve an important purpose by providing a mechanism for a wronged spouse to seek compensation for the harm caused by an extramarital affair. They argue that these laws help to discourage infidelity and protect the sanctity of marriage. Supporters also contend that these laws can provide a sense of closure and validation for individuals who feel wronged by their spouse’s infidelity.
However, as public attitudes towards marriage and infidelity continue to evolve, it is likely that alienation of affection laws will continue to come under scrutiny. Some states, such as North Carolina and Mississippi, have retained these laws, but others have enacted legislation to abolish them . For example, in 2011, Hawaii became the latest state to abolish alienation of affection claims, following in the footsteps of Montana, South Dakota, and Utah.
In addition to legislative changes, court rulings may also impact the future of alienation of affection laws. For example, in 2007, the Supreme Court of Vermont held that the state’s alienation of affection law was unconstitutional, finding that it violated equal protection and due process rights. This ruling raised questions about the constitutionality of these laws in other states, though the issue has not yet been fully resolved.
Looking ahead, it is likely that the future of alienation of affection laws will depend on a combination of legislative changes, court rulings, and public attitudes. While some states may continue to support these laws as a means of protecting marriage and discouraging infidelity, others may follow the lead of Hawaii, Montana, South Dakota, and Utah and abolish them altogether. Ultimately, the fate of alienation of affection laws will continue to be a contentious issue as society grapples with questions of personal morality, individual rights, and the role of government in regulating private behavior.