alienation of affection

Tort law

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At common law, alienation of affections is a tort action brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors and therapists or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections.

History and scope

Alienation of affections was first codified as a tort by the New York state legislature in 1864, and similar legislation existed in many U.S. states in the late 19th and early 20th centuries. Since 1935, this tort has been abolished in 42 states. Alienation is, however, still recognized in Hawaii, Illinois, North Carolina, New Hampshire, Mississippi, New Mexico, South Dakota, and Utah.^[1][2]

An action for alienation of affection does not require proof of extramarital sex. An alienation claim is difficult to establish because it comprises several elements and there are several defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim where it can be shown that defendant did not know that the object of his or her affections was in fact married. It is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant’s conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

North Carolina

In North Carolina, alienation of affections suits are still regularly pursued, with an estimated 200 lawsuits a year filed. Courts sometimes award large awards, with a few cases in recent years involving awards of over one million dollars. In 2001, two high profile suits drew attention to the cause of action: Christine Cooper of Greensboro won a $2,000,000 verdict against her husband's mistress and Thomas Oddo won a $1.4 million suit against his wife's lover.^[3] Lawyers advertise their expertise in such lawsuits as a regular legal specialty.^[4][5] In North Carolina such lawsuits can be filed only for conduct prior to a separation; however, the tort of criminal conversation applies to post-separation conduct as well. The North Carolina legislature has repeatedly had bills to abolish the tort introduced, and declined to do so;^[6]. The legislature approved legilation in September, 2009, which placed some additional limits on such lawsuits, including a three-year statute of limitations, and a prohibition on suing businesses for the conduct of their employees^[7][8]

Mississippi

The Mississippi Supreme Court, in Fitch v. Valentine, upheld the constitutionality of the state's alienation of affection law.^[9][10]

In July, 2009, Leisha Pickering, the wife of former Mississippi Congressman Chip Pickering, filed suite against his alleged mistress, Cellular South heiress Elizabeth Creekmore Byrd, demanding compensation for alienation of affection.^[11] The case, which is the highest profile claim of this sort in a generation, was still pending as of October, 2009.^[12]

Criticism

Although some trial lawyers support such statutes, many divorce attornies believe such laws should be repealed.^[13] A leading North Carolina divorce specialist has written: " Adultery is not uncommon, but an alienation-of-affection case just polarizes everyone and devastates everything in its path including the children and both spouses....The world has changed. Women are no longer viewed as property. alienation-of-affection is something that dates way, way back, and if there was ever a law that needed to be removed, this is it." ^[14]

Liberal writer Jacob Appel has called these suits "vestiges of legal codes that also prohibited divorce and criminalized premarital sex" and argued that they are likely unconstitutional in the aftermath of the United States Supreme Court ruling in Lawrence v. Texas.^[15] He has derided these suits as using the "judicial system as a mechanism for personal vengeance."^[16] According to Appel, "The consensual conduct of adults in their own bedrooms ought to be their own business, and maybe that of their spouses, not a matter to be deliberated over by a jury of meddlesome peers."^[17]

References

External links

• WORLDLawDirect
• States of the U.S. that have abolished and that retain Alienation of affection laws
• North Carolina Alienation of affection in divorce discussion