In what states can Alienation of Affection lawsuits still be filed?

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As of January 2008, the only states in the United States that allow alienation of affection lawsuits are: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. It has been abolished in other states by statute or by case law. An example of statute can be found in Massachusetts General laws C.207 Section 47B:

  • Section 47B: Alienation of affection and criminal conversation shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor.

Alienation of affection is a tort based on willful and malicious interference in a marriage by an outsider.

The plaintiff needs to prove that:
  • The marriage was happy and love between the spouses existed.
  • The marital love was alienated and destroyed by the third party.
  • The third party's conduct willful and malicious interference with the marriage relationship.

Most states view laws against intrusion by a third party into a marriage as outdated, archaic and an unacceptable form of revenge. Alienation of affection is not easily applied in modern times with adultery and divorce being so common and widespread and no longer considered to be outrageous conduct directed at the injured spouse. It has come to be recognized that an affair is not an outsider's fault but the unfaithful spouse is equally responsible. A spouse has the right to expect their partner to remain faithful. The third party has no obligation to make certain your spouse remains faithful. If their spouse is unfaithful, divorce is always an option.

Historically, the alienation of affection laws were based on cultural realities of the past. First, the belief that a wife was the property of her husband. Therefore, when a woman was emotionally or sexually involved with another man, she was considered to have been stolen. Second, a woman's only source of support was her husband. If someone alienated her husband's affection from her, she could be left without any means of support since a woman rarely was able to earn her own living.

Some litigants attempt to sue for intentional infliction of emotional distress where alienation of affection is unavailable, but again, the requirements are high and it is extremely difficult to prove.
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