Alienation of Affection Divorce Laws

by Beverly Bird
An alienation-of-affection lawsuit blames someone else for the breakup of your marriage.

An alienation-of-affection lawsuit blames someone else for the breakup of your marriage.

Goodshoot/Goodshoot/Getty Images

Alienation-of-affection laws reflect the outdated concept that if a spouse strays, a third party must have lured her into it and a court can therefore hold that person accountable. Most states have abolished alienation-of-affection laws. Only South Dakota, New Mexico, Hawaii, Mississippi, Utah, North Carolina, New Hampshire and Illinois allowed such lawsuits as of the 2011.

Litigation

An alienation-of-affection lawsuit is a separate civil tort claim, not part of a divorce action. A tort claim alleges that the party being sued intentionally took an action that caused harm to someone else, usually the person who files the lawsuit. A tort verdict is in the form of damages, money the guilty party must pay to the harmed party to compensate him for his pain and suffering. It sometimes results in punitive damages as well, leveled against the guilty party as punishment for his wrongdoing.

Basis

Although alienation-of-affection lawsuits most often come about as the result of an adulterous affair, they’re not limited to this. Anyone who interferes with the relationship between you and your spouse is potentially liable. If your in-law or your spouse’s best friend frequently urges her to leave you and she finally does, you may have an alienation-of-affection claim. You generally only need to prove that you and your spouse were in love at the time the third party acted, that the action the third party took logically affected the love you shared, and that the love between you died as a result.

Criteria

You don’t have forever to file an alienation-of-affection lawsuit. Most states that allow them have a three-year statute of limitations. Generally, the alienation of affection must occur prior to your marital separation, but some exceptions exist. For example, if you and your spouse are contemplating a reconciliation and the third party interferes with that, you might be able to file an alienation-of-affection lawsuit. You don’t have to prove that the relationship between your spouse and the third party was sexual in nature, because in some cases, it may not be. Some states don’t even require you to establish that the third party acted maliciously; you only need to prove that the action he took was likely to end the affection between you and your spouse.

Damages

Compensatory damages cover a wide range of reimbursement. You can sue for the loss of your spouse’s income because she left your home, for your heartbreak, for money spent on counseling to try to deal with the betrayal, for the costs of the lawsuit or for damage to your own reputation. Courts generally award punitive damages only if you manage to prove that the third party acted with the express purpose of destroying your marriage.