Alienation of affections
Encyclopedia
At common law
, alienation of affections is a tort
action 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.
state legislature in 1864, and similar legislation existed in many U.S. state
s in the late 19th and early 20th centuries. Since 1935, this tort has been abolished in 42 states. Alienation is, however, still recognized in 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.
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:
An Alienation of Affections suite may be brought against an employer if one of these three circumstances is evident.
1) The employer authorized the employee’s acts;
2) The employee’s acts were committed within the scope of his employment and in
furtherance of the employer’s business; or
3) The employer ratifies the employee’s acts.http://www.northcarolinafamilylawnews.com/2010/09/01/cheating-on-the-jobalienation-of-affections-criminal-conversation-and-employer-liability/
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 employees "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.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, alienation of affections is a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
action 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.
History and scope
Alienation of affections was first codified as a tort by the New YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
state legislature in 1864, and similar legislation existed in many U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s in the late 19th and early 20th centuries. Since 1935, this tort has been abolished in 42 states. Alienation is, however, still recognized in Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
, Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
, New Mexico
New Mexico
New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...
, South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
, and Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
.
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.
North Carolina
In North Carolina, alienation of affections suits are still regularly pursued, with an estimated 200 lawsuits a year filed. Courts sometimes award large awards, with a few cases in recent years involving awards of over one million dollars. In March 2010, Cynthia Shackelford won a $9 million suit against her husband's alleged mistress. The most recent case, with the judgment handed down early September 2010, boasted the second highest award in the history of such suits. Dr. Lynn Arcara successfully sued her former friend, Susan Pecoraro, who allegedly seduced Arcara's husband while Pecoraro was visiting the couple at their North Carolina home (Pecoraro lives in Maryland). Arcara was nearing the expected delivery date of their unborn child at the time, the couple's first, and her friend, Pecoraro, had come to help Arcara prepare the nursery for the soon-to-be-born child. The alleged affair took place in 2006, and the marriage ended in 2007. Lawyer Cynthia Mills, who represented Arcara, played up the fact that Arcara had been betrayed by her closest friend. Pecoraro's own marriage ended in 2007, after the affair had been discovered. 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 conversationCriminal conversation
Criminal conversation, commonly known as crim. con., is a tort arising from adultery.-History of criminal conversation:It was based upon compensation for the husband's loss of property rights in his wife, the wife being regarded as his chattel. Historically a wife could not sue her husband for...
applied to post-separation conduct as well. The North Carolina legislature
North Carolina General Assembly
The North Carolina General Assembly is the state legislature of the U.S. state of North Carolina. The General Assembly drafts and legislates the state laws of North Carolina, also known as the General Statutes...
has repeatedly had bills to abolish the tort introduced, and declined to do so. In 2009, the General Assembly
North Carolina General Assembly
The North Carolina General Assembly is the state legislature of the U.S. state of North Carolina. The General Assembly drafts and legislates the state laws of North Carolina, also known as the General Statutes...
approved legislation which placed some additional limits on such lawsuits. The bill was signed into law by Governor Bev Perdue
Bev Perdue
Beverly Eaves "Bev" Perdue is an American politician and member of the Democratic Party currently serving as the 73rd Governor of the U.S. state of North Carolina. She is the first female governor of North Carolina....
on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes:
An Alienation of Affections suite may be brought against an employer if one of these three circumstances is evident.
1) The employer authorized the employee’s acts;
2) The employee’s acts were committed within the scope of his employment and in
furtherance of the employer’s business; or
3) The employer ratifies the employee’s acts.http://www.northcarolinafamilylawnews.com/2010/09/01/cheating-on-the-jobalienation-of-affections-criminal-conversation-and-employer-liability/
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 employees "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.
Mississippi
The Mississippi Supreme Court, in Fitch v. Valentine, upheld the constitutionality of the state's alienation of affection law. 959 So. 2d 1012 (2007)Criticism
Although some trial lawyers support such statutes, many divorce attorneys believe such laws should be repealed. One North Carolina divorce attorney has written: "Adultery is not uncommon, but an alienation-of-affection case just polarizes everyone and devastates everything in its path including the children and both spouses....The world has changed. Women are no longer viewed as property. Alienation-of-affection is something that dates way, way back, and if there was ever a law that needed to be removed, this is it."External links
- Alienation of Affections Explanation and Example, 2009, CNNCNNCable News Network is a U.S. cable news channel founded in 1980 by Ted Turner. Upon its launch, CNN was the first channel to provide 24-hour television news coverage, and the first all-news television channel in the United States...