Alienation of Affections
Alienation of Affections is a common law, tort action brought by a deserted spouse against a third person alleged to be responsible for the failure of the marriage. The defendant in an alienation of affections suit is typically the person your spouse was having the affair with. However, the defendant can also be family members, counselors and theraptist or clergy members who advised a spouse to seek divorce.
The law was first codified in New York. Since 1935, this tort has been abolished in 42 states. However, these states still recognized the law, Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah.
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) 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 on the marriage. Thus, defendant has a defense against an alienation claim where it can be shown that defendant did not know that the object of his or her affections was in fact married. It is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If 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.
