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Alienation of Affection: What Is It and How to Prove It

Alienation of affection is a concept that allows one spouse to sue a third party for interfering in their marriage. It's only available in a few states. Find out more.

evident Editorial Team
December 6, 2023
broken heart, paper, chain

Alienation of affection is an antiquated legal concept that allows one spouse to sue a third party for interfering in their marriage. Though largely abolished in the United States, this tort law persists in just a handful of states. 

But what exactly constitutes alienation of affection? How is it proven in court? And why do some states continue to enable these lawsuits between jilted spouses and supposed homewreckers? 

This article will explore the history of alienation of affection laws and examine their merits and shortcomings in today's society. We'll also look at some high-profile alienation of affection cases that have made headlines in recent years. 

Though alienation of affection lawsuits have decreased substantially since their heyday in the early 1900s, they continue to divide opinions on whether they protect the sanctity of marriage or simply allow spurned spouses to spitefully target their ex's new lover.

Key Takeaways

What is Alienation of Affection?

Alienation of affection is a common law tort claim that allows a spouse to sue another person for depriving them of their partner's affection. To win these kinds of lawsuits, the plaintiff (the suing spouse) must prove that the defendant (the third party) intentionally interfered with their marriage, resulting in alienation of affection.

Specifically, to win such a claim, the suing spouse must show that:

  • The couple was happily married, and genuine love and affection existed between them.
  • The defendant's actions contributed to destroying the marriage's love and affection.
  • The defendant acted intentionally or maliciously to alienate the spouse's affections.
  • The loss of affection ultimately led to the couple's separation or divorce.

If the suing spouse can prove these elements in court, they may be awarded significant monetary damages intended to compensate for emotional distress, loss of companionship, and other harms associated with the failed marriage.

Today, just six U.S. states still allow spurned spouses to file lawsuits against the person they deem responsible for ruining their marriage:

Alienation of Affection States Details
North Carolina Alienation of affection laws date back to the late 1800s in NC. It remains one of the most active states for these lawsuits.
Hawaii Hawaii has a long history with alienation of affection suits. Courts have upheld sizeable judgements against defendants.
Mississippi MS code outlines the right to sue for alienation of affection. Lawsuits have decreased but continue.
New Mexico NM's statute permits filing suits for "criminal conversation" leading to alienation.
South Dakota SD abolished heart balm torts like alienation but later reinstated the right to file claims.
Utah Utah courts have awarded over $1 million in some recent alienation cases.

If you're considering an alienation of affection claim, contact a local family law attorney.

The Historical Context

Alienation of affection originates from old English common law principles allowing a husband to sue another man for "criminal conversation" with his wife. Criminal conversation referred to adultery, which gave grounds for a lawsuit seeking monetary damages from the affair participant.

Alienation of affection evolved from criminal conversation torts, applying more broadly to interference in the marriage relationship—even without proof of adultery. By the late 1800s, most U.S. states recognized alienation of affection as a legal cause of action for spurned spouses.

horse, carriage, nature

At the time, married women had few rights, and divorce was difficult to obtain. Alienation claims gave spurned wives some legal recourse against mistreatment or abandonment by their husbands. By the mid-20th century, state laws changed to grant women more autonomy. With the availability of no-fault divorce, alienation of affection claims decreased substantially by the 1970s, though a handful of states retained the tort. 

Today, alienation suits are still filed but far less frequently than at their peak in the early 1900s. While modern sensibilities may question this old common law tort, it continues to give spurned spouses a way to hold third parties legally accountable for failed marriages in the states where alienation claims remain valid.

The Core Elements of Alienation of Affection Claims

When seeking to make a claim on the grounds of alienation of affection, it's not as simple as just stating that a third party caused the love in your marriage to dissipate. 

There are specific core elements that must be proven for a successful "affection claim."

1. Affectionate Marriage Existed

couple, marriage, bench

Firstly, the marriage must have been characterized by genuine love and affection. This doesn't mean that the marriage had to be perfect, but rather that a tangible bond of affection was evident and recognized.

Indicators of an Affectionate Marriage:

  • Frequent expressions of love and care
  • Shared life goals and values
  • Regular intimate moments, both emotional and physical
  • Mutual respect and trust

2. Defendant's Conduct Led to Alienation

Secondly, the conduct of the third party (the defendant) must be demonstrated. It should be evident that the defendant's actions were malicious or wrongful, leading directly to the erosion of marital affection.

Examples of Defendant's Conduct:

  • Engaging in a secret romantic relationship with the cheating spouse
  • Manipulative behavior or consistent negative influence
  • Actively creating situations causing marital discord

3. Loss of Affection Occurred

lover, adult, bedroom

There must be a clear causal link between the defendant's behavior and the loss of the spouse's affection within the marriage. It's not enough for a plaintiff's spouse to simply have lost feelings; the loss must be directly attributable to the defendant's actions.

4. Separation or divorce followed the alienation. 

Finally, the plaintiff has to establish that the alienation of affection was the proximate cause of the marriage ending via separation or divorce. Timing and sequence of events is critical.

Alienation of Affection vs. Criminal Conversation

Alienation of affection is often confused with the related concept of criminal conversation.

While the two torts have some overlap, there are important distinctions:

  • Criminal conversation requires proof of adultery. For a criminal conversation claim, the suing spouse must prove their adulterous spouse engaged in sexual intercourse outside the marriage. Alienation of affection has no such requirement.
  • Alienation is broader. Alienation laws apply to any malicious interference with the marriage, even without extramarital affairs. Acts like abuse, neglect, or financial sabotage could qualify.
  • Different damages awarded. Criminal conversation solely provides damages for sexual transgressions. Alienation covers a broader range of harm from the broken marital relationship itself.
  • Alienation laws are more prevalent today. Most states have abolished criminal conversation laws due to societal changes. Alienation suits are still permitted in a handful of states.

While an extramarital affair could form the basis of both tort actions, criminal conversation requires concrete evidence of adultery. Alienation of affection focuses more broadly on emotional attachments and the marital relationship as a whole.

Understanding these subtle differences is important for anyone considering filing an alienation lawsuit.

The Legal Ramifications

In the few states where alienation of affection remains valid, the legal implications can be significant for those involved in an alienation of affection lawsuit. 

For the plaintiff (the suing spouse): There is the potential to be awarded substantial monetary damages intended to compensate for the emotional distress, mental anguish, and costs associated with the failed marriage. However, the plaintiff must be prepared to prove their case in court with evidence and testimony.

For the defendant (the accused third party): An alienation claim can mean facing an expensive, reputation-damaging legal battle. Even if the defendant is exonerated, the publicity and legal fees can be punishing. In some cases, the defendant may settle the lawsuit out of court to avoid further hassle.

Damages: If found liable for alienation of affection, the defendant can be ordered to pay out compensatory and (in some rarer cases) punitive damages. Awards can total over $1 million in some instances. The prevailing plaintiff may be able to garnish the defendant's wages or put liens on their property if damages are not paid.

For the parties involved, the family trauma becomes a public, litigated ordeal with lasting legal consequences.

People Also Ask

What states is alienation of affection legal?

An alienation of affection claim, once recognized nationwide, is now only legal in a handful of states. Over time, many jurisdictions dismissed it as outdated, while some retained it, believing in its efficacy in safeguarding marital bonds. 

The most notable is North Carolina, where several high-profile cases have been litigated under its alienation of affection law.

north carolina, state, usa

Here are some examples:

Other states where such claims can be made include Hawaii, Mississippi, New Mexico, South Dakota, and Utah. 

It's essential to consult local family law experts in your jurisdiction to understand the current legal stance.

What proof do you need for alienation of affection?

How successful are alienation of affection cases? Well, the burden of proof can be hefty.

A plaintiff must show:

  1. The existence of genuine love and affection in the marriage.
  2. The love and affection were alienated and destroyed.
  3. The defendant's malicious conduct directly caused this loss.
  4. Separation/divorce followed the alienation.

Evidence can range from messages, witness testimonies about the defendant's actions, or even professional accounts about the decline in the marital relationship after the defendant's interference.

What constitutes alienation of affection?

Alienation of affection is not limited to extramarital affairs. It encompasses any intentional actions by a third party leading to the erosion of affection and emotional support within a marriage. 

This can include:

  • Consistent interference or badmouthing by in-laws or friends.
  • Emotional relationships that breach the sanctity of the marital bond.
  • Deliberate attempts by a third party to sow distrust or jealousy.

The underlying theme is an external entity's intentional disruption of marital harmony.

Is alienation of affection hard to prove?

Yes, alienation of affection claims can be challenging to substantiate. The complexity arises from the need to prove not just the loss of affection but that the defendant's direct actions caused this loss. 

It's not about showcasing marital discord but linking it concretely to the third party's interventions. This often requires a mix of tangible evidence and testimonies, and even then, success is not guaranteed, as emotions and relationships can be multifaceted and subjective.

Summing It Up

Despite evolving social norms and laws, alienation of affection continues to give jilted spouses legal recourse in a handful of U.S. states. While these lawsuits have certainly decreased, North Carolina, Hawaii, Mississippi, New Mexico, South Dakota, and Utah maintain the tort of alienation of affection. In these states, the law enables spurned husbands and wives to hold third parties financially accountable for the breakdown of their marriage.

Yet, pursuing litigation comes with no guarantee of victory or validation. The plaintiff must decisively prove malicious intent and causation on the defendant's part, which sets a high legal bar.

Alienation of affection laws remain controversial, and their fate is uncertain. Still, for those whose marriage ends bitterly, this old common law doctrine retains relevance today as a way to seek revenge against an unfaithful spouse and their partner or redemption in the courts.