Alienation of affections
|Part of the common law series|
|Liability and remedies|
|Duty to visitors|
|Other common law areas|
Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is 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. As of 2016, six US states (Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah), recognize this tort, as well as Puerto Rico.
The tort of alienation of affections is similar to the tort of criminal conversation.
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) the 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 the marriage. Thus, the defendant has a defense against an alienation claim where it can be shown that he or she did not know that the object of his or her affections was in fact married. It is not a defense that the guilty spouse consented to the defendant's conduct, but it might be a defense that the defendant was not the active and aggressive seducer. If the 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.
As of 2016[update], alienation of affection was recognized in six United States jurisdictions: Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah. The tort of alienation of affection was inherited as part of the common law. The law was codified in some states, the first one being New York with legislation 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, including New York. Most States have abolished the action by legislation, but some came to an end by judicial review. For example, in 1927, actions for alienation of affection were abolished in Louisiana as a result of Moulin v. Monteleone, 165 La. 169, 115 So. 447. See also South Carolina case Russo v. Sutton, 422 SE 2d 750 (1992), abolishing the heart balm action for alienation of affection.
Alienation of affection and criminal conversation lawsuits are allowed in North Carolina. It is estimated that over 200 alienation of affection cases are filed in North Carolina each year.
Million dollar verdicts have not been uncommon in North Carolina for alienation of affection and emotional distress. In March 2010, a wife won a $9 million suit against her husband's mistress. In another 2010 case, a wife successfully sued her former friend who allegedly seduced her husband while the friend was visiting the couple at their North Carolina home, resulting in the second highest award ever received in such suits. A Mecklenburg County jury awarded $1.4 million in May 2001 to a former wrestling coach against P, after the coach's wife left him for P (the jury verdict was later reduced by the NC Court of Appeals as excessive). A year 2000 verdict of $86,250 for alienation of affections and $15,000 for criminal conversion in the case of Pharr v. Beck, from Burke county was upheld on appeal. In 1997, in the case of Hutelmyer v. Cox, the Plaintiff wife was awarded $1 million against her husband's secretary who "dressed sexy at work" and had an affair with him destroying their marriage.
In North Carolina such lawsuits can be filed only for conduct prior to a separation; although, prior to changes in the law which went into effect in October 2009, the tort of criminal conversion applied to post-separation conduct as well. The North Carolina legislature has repeatedly had bills to abolish the tort introduced, and declined to do so. In 2009, the General Assembly approved legislation which placed some additional limits on such lawsuits. The bill was signed into law by Governor Bev Perdue on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes:
§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.
(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.
(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.
An Alienation of Affections suit may be brought against an employer if one of these three circumstances is evident.
- The employer authorized the employee's acts;
- The employee's acts were committed within the scope of his employment and in furtherance of the employer's business; or
- The employer ratifies the employee's acts.
Each of the three limitations arose from a recent North Carolina legal case involving the tort. In Jones v. Skelly, N.C.App. 2009, the North Carolina Court of Appeals had held that the tort applies even to legally separated spouses. In Mesenheimer v. Burris, N.C. 2006, the North Carolina Supreme Court held that the statute of limitation commences when the affair should have been discovered rather than when it occurred. In Smith v. Lee, 2007 U.S. Dist. LEXIS 78987, the Federal District Court for the Western District of North Carolina noted that the question of whether an employer could be held liable for an affair conducted by an employee (e.g. while on a business trip for the employer) was still unsettled in North Carolina.
There is often confusion over where an employee's "scope of employment" ends. An example of this would be a minister having sex with a person that has been receiving counseling services from that minister. In theory the minister is acting within the scope of employment because it is their duty to provide these counseling services and it is through these services that they gain access to the victim.
In 2014, Resident Superior Court Judge John O. Craig dismissed the case of Rothrock v. Cooke, ruling that the state's criminal conversion and alienation of affection laws were unconstitutional, infringing up on 1st and 14th amendment rights in the U.S. Constitution. That case was not appealed. In 2017, the North Carolina Court of Appeals, in a different case, ruled that the common law cause of action of alienation of affection was not facially invalid under the First and Fourteenth Amendments.
The Mississippi Supreme Court, in Fitch v. Valentine, upheld the constitutionality of the state's alienation of affection law.
- Wayne Drash, CNN (2009-12-08). "Beware cheaters: Your lover's spouse can sue you – CNN.com". Edition.cnn.com. Retrieved 2015-02-26.
- note: Illinois abolished this tort in 2016 
- Bruton, H. Hunter (January 2016). "The Questionable Constitutionality of Curtailing Cuckolding: Alienation of Affection and Criminal Conversation Torts".
- N.Y. Civil Rights Act article 8, §§ 80-A to 84. "CAUSES OF ACTION FOR ALIENATION OF AFFECTIONS, CRIMINAL CONVERSION, SEDUCTION AND BREACH OF CONTRACT TO MARRY ABOLISHED". New York State Assembly. Retrieved February 7, 2012.
- "Alienation of Affection & Criminal Conversation". Rice Law PLLC. Retrieved 22 January 2014.
- GOMSTYN, Alice (2010-03-22). "Wife Wins $9 Million From Husband's Alleged Mistress". ABC News. Archived from the original on 25 March 2010. Retrieved 2010-03-23.
- "Spurned wife Lynn Arcara sues husband's mistress and WINS £3.75m". Mail Online. 9 September 2010. Retrieved 22 February 2016.
- N.C. Gen. Stat. § 52-13 (2010), (available at http://www.ncga.state.nc.us/Sessions/2009/Bills/House/PDF/H1110v7.pdf Retrieved 23-3-2010)
- CBS report, June 18, 2003
- (broken link)[permanent dead link] at The Sun News of Myrtle Beach, South Carolina.
- "House Bill 1110 / Session Law 2009-400" Retrieved 23-3-2010
- "Alienation of affection law unconstitutional, Forsyth County judge rules". Winston-Salem Journal.
- Eugene Volkh. "The First Amendment protects a right to engage in adultery?". The Washington Post.
- Malecek v. Williams 804 S.E.2d 592 (2017). FindLaw. Retrieved 6 December 2017.
- Fitch v. Valentine 959 So. 2d 1012 (2007). FindLaw. Retrieved 6 December 2017.