An alienation of affection lawsuit is based upon traditional notions of marriage and that a marital union provided property rights vested to each spouse. In an effort to punish cheating spouses and their cohorts, these suits date back to the 19th century. Today, with states widely favouring no-fault divorce, most states have abolished their alienation of affections statutes. Only a few states still recognise this claim and allow monetary awards to the "innocent" spouse.
Use in Divorce Proceedings
Typically used by divorcing spouses, alienation of affection lawsuits are aimed at punishing the third-party "wrong-doer." The "innocent" spouse typically files a complaint against a third-party for intentionally interfering with an otherwise loving marriage. Usually, these suits involve adulterous spouses and punish their adulterous partners.
First recognised in a New York courtroom in 1864, these lawsuits have been meritorious in several high-profile cases, such as the expensive, high-profile case against Chip Pickering, father of five and once-rising Republican candidate selected to take over the U.S. Senate. Chip Pickering and his alleged mistress were named parties in a suit filed by his ex-wife.
Common Law Tort Action
Commonly referred to as "heart-balm" or "consortium" actions, alienation of affections is based upon the common law tort of intentional interference by a third-party wrongdoer. As defined by Black's Law Dictionary, the necessary elements and burden of proof is on the plaintiff to show the defendant's wrongful misconduct; the plaintiff's loss of affection or consortium of spouse; and a causal connection between such conduct and such loss.
In other words, the third party's misconduct must be proved to have been malicious and have intentionaly interfered with the marital bonds between husband and wife. The plaintiff does not have to show the third-party engaged in sex with her husand.
Historically, the majority of jurisdictions that have upheld this law have typically drawn a line between pre-separation conduct and post-separation conduct. Adulterous conduct following the separation is typically outside of the alienation of affections suit unless the adultery is evidence of pre-separation cheating or if the couple decided to later reconcile and restore their marital bonds; then the post-separation adultery could be important.
As of 2009, only a few states still have alienation of affection statutes on their books. These states are North Carolina, Illinois, South Dakota, Mississippi, New Hampshire, Utah, and New Mexico. Every other U.S. jurisdiction has abolished this action.
Since laws may change frequently, you should verify your state recognises this cause of action by obtaining competent legal advice from a licensed attorney in your state.
In North Carolina, more than 200 of these suits are filed annually, although most are settled out of court before any trial proceedings have begun.
Public Policy and Public Opinion
Most jurisdictions within the United States have abolished the law for public policy reasons. In states still recognising this cause of action, the defendant may claim that she didn't know her partner was married as an affirmative defence, because intentional conduct is required in a successful suit.
Critics of this law claim that the laws are inappropriate methods for legislative bodies to control morality and conduct of its citizens. Critics also cite cases in which the laws may have been used as only punitive measures by jealous spouses exacting revenge from third parties. Proponents of this law claim legal penalties should exist for those who engage in extramarital affairs. Those in favour claim that marital promises and vows should be taken more seriously, and these laws serve as effective deterrents for spouses that are thinking about cheating.