Alienation of Affection Lawsuits
Adultery is no longer as scandalous as it once was. This is evident in the “no-fault” laws adopted by many of the states. Whereas in times past a divorce would only be granted upon proof of fault by one party or the other (like adultery), many states have done away with this condition entirely. Instead, these pure “no-fault” states only require one of the parties to allege there are “irreconcilable differences” that make continuing with the marriage impractical. Even in states that still permit one party to allege and prove fault, adultery plays a small role (if any role at all) in divorce proceedings.
Even though there may not be much of a place for adultery in modern divorce courts, this does not mean that affairs and cheating behaviors of one spouse can cause the other spouse a great deal of pain. Rather than “getting back” at the unfaithful spouse, however, some jilted partners may want to pursue legal action against their spouse’s paramour. What legal rights, if any, do spouses have against the other spouse’s extramarital partner?
Alienation of Affection Suits in General
In the past, the jilted spouse could bring legal action against the extramarital partner by filing an alienation of affection lawsuit. These suits sought to compensate the wronged spouse for the damage the partner caused to the marital relationship. In order to prevail in these suits, the wronged spouse (who would also be the plaintiff) would need to show that the spouses’ relationship was characterized by love and affection but that the partner negligently, wrongfully, and/or recklessly engaged in behavior that interfered with the cheating spouse’s affections toward the other spouse. If such an alienation of affection lawsuit was successful – and if the extramarital partner was wealthy enough – the jilted spouse could recover a substantial amount of damages.
While alienation of affection lawsuits were once common in many states, they are now only available in Hawaii, Illinois, New Mexico, Mississippi, Utah, North Carolina, and South Dakota. This means that spouses whose partners cheat on them in the other 43 states are without any legal recourse against the extramarital partner.
What if the Extramarital Affair Takes Place in Another State?
Suppose that two spouses are married and reside in Arizona. For the first few years of the marriage, everything appears to be going well in the marriage and the spouses remain affectionate to one another. At some point during the course of the marriage, however, the husband meets and develops a romantic relationship with another woman who lives in North Carolina. Over the next several years, the husband will make frequent visits to North Carolina under the guise of “business trips.” The husband’s mistress never travels to meet him in Arizona, and all of the rendezvouses between the pair take place in North Carolina. The wife eventually finds out about her husband’s affair and files for divorce in Arizona. Does she have any claim against the mistress for alienation fo affection?
If all of the activities and encounters that lead to the alienation of the husband’s affection from his wife take place in North Carolina (a state that recognizes alienation of affection actions), the wife may be able to file such a lawsuit in North Carolina and recover damages against the mistress. This is because the activities that led to the alienation of the husband’s affections took place in North Carolina.
Whether there continues to be a place in modern family law for alienation of affection actions is a question for state legislators to address. In the meantime, spouses who have been cheated on may find some comfort in being able to produce some measure of discomfort for the extramarital person through a legal action.