What Is Alienation of Affection? Definition and Examples

Alienation of affection is a tort that allows a spouse (or former spouse) to sue a third party for interfering in their marriage (or former marriage), which results in losing affection for their partner. Though alienation of affection is only recognized in six of the U.S. states today, it allows impacted individuals to seek legal recourse for what has happened to them and their marriage. In some cases, this recourse can come in the form of financial compensation for the emotional harm done by this third party. 

Don’t let that third party get away with it without consequences for what they’ve done to your marriage. If you live in one of the six states that have not yet abolished the alienation of affection law, you may have some legal recourse.

What is alienation of affection?

Alienation of affection is a common law tort that allows a spouse to sue a third party believed to have intentionally interfered in the marriage, essentially causing loss of affection. (A tort is a civil wrongdoing that causes harm or loss to another person). That person—or “injured party”—can seek legal redress against the responsible party who caused the harm.

For example, if a wife (we’ll call her Emily) was married to her husband (we’ll call him David), and David’s co-worker (we’ll call her Sarah) started to overstep her boundaries with David.

Over time, this relationship escalated. Perhaps the involvement of Sarah, the third party, led to stressful conversations between Emily and David, or maybe David went along with Sarah. This ultimately led to David feeling an “alienation of affection” for his wife, Emily, and he filed for divorce. Now, following the divorce—which is typically when these cases are filed—Emily wants to take legal action against Sarah for the harm she has inflicted. Emily might be wondering if she can sue the other woman for emotional distress or for other damage Sarah has done.

What are some alienation of affection cases?

The concept of alienation of affection dates back centuries, but in terms of its place in the U.S. legal system, here’s a brief timeline:

• 19th century: Alienation of affection was widely recognized and adopted in U.S. law during this time period. It was part of a broader set of marital torts that allowed a married person to seek damages for wrongful acts that harmed the marriage.
• Early 20th century: Throughout the early 20th century, many states enacted laws or upheld court rulings that recognized alienation of affection as a valid cause of action. This period saw numerous cases where spouses successfully sued third parties for damages related to the loss of love and affection in their marriages. 
• Today: Alienation of affection has been abolished in most states since the 1950s due to major shifts in societal attitudes toward marriage and personal relationships and concerns about the impact on marital and individual privacy rights. One of the more recent famous cases was in North Carolina. In Shackelford v. Lundquist (2010), Cynthia Shackelford was awarded $9 million in an alienation of affection case against Anne Lundquist, who had an affair with her husband.

Alienation of affection states

All this considered, some states continue to uphold the alienation of affection tort. This could be due to several reasons, such as a state’s historical and traditional beliefs or the public not having enough knowledge or pressure to do away with it.

Here are the six alienation of affection states:

1. North Carolina
2. Mississippi
3. South Dakota
4. Utah
5. Hawaii
6. New Mexico

If you live in one of these states, then you can utilize alienation of affection laws if you find yourself in a situation where you need to seek legal recourse.

How to prove alienation of affection

If you want to prove alienation of affection—which can be tricky—there are a few steps you’ll need to take as you introduce evidence.

Step 1: Demonstrate the existence of a loving marriage

To start, you’ll have to demonstrate to the judge that the marriage, at one point, was strong and that the two parties had a loving bond. You might be wondering, “How could I possibly prove the marital love?” 

Well, let’s go back to our example of Emily and David. Perhaps they’ve been married for over a decade and maybe were even high school sweethearts. Photo albums of vacations taken over the years, selfies in their phone, as well as examples of gifts given, anniversaries celebrated,  etc., and were known among friends and family for their close bond. Photos, videos, and testimonies from friends and family corroborate the deep affection and genuine love present in their marriage.

Step 2: Prove the decrease in affection from the spouse

Next, you have to show that there has been a significant decrease in affection from your spouse or former spouse. To continue with your example, Emily noticed that David became increasingly distant and less affectionate. He stopped participating in activities they once enjoyed together, such as their weekly date nights, and began spending more time away from home without explanation. 

Eventually, Emily discovered that David had developed a close relationship with his coworker Sarah, which seemed to coincide with the decline in their marital affection. This could perhaps be demonstrated through messages and phone call records showing that Emily’s messages went unanswered or with only curt replies from David, or secret meetings between Emily and David.

Step 3: Gather information implicating the third party

Once you have gathered evidence that David has withdrawn his affection from Emily, it’s time to collect evidence on the third party that could be presented in a legal claim, demonstrating that their actions were the sole cause.

Sarah often invited John out for dinners and drinks, sent him flirtatious text messages, and even bought him expensive gifts, all while knowing that he was married. Sarah's actions were deliberate and aimed at fostering a closer relationship with David at the expense of his marriage. text messages, emails, and witness testimonies, showing that Sarah’s actions were wrongful and intentional, directly contributing to the loss of affection, which resulted in divorce.

Defenses commonly used in alienation of affection lawsuits

Now that you’ve gathered your evidence, you might be wondering what chances you have of claiming legal recourse against the third party. And, like any lawsuit, you’d want to know any possible defenses a defendant might use to disprove your claim:

• Lack of knowledge: The defendant was unaware the person was married.
• Preexisting marital issues: They are able to demonstrate that the marriage was already failing before the third party's involvement, perhaps through text messages from the other spouse (in this case, David). 
• Consent: The plaintiff consented to the actions or had an open marriage agreement.

How successful are alienation of affection cases?

While it would be nice for Sarah to get millions of dollars from Emily—and there have been situations where this has happened—the range of compensation from winning an alienation of affection lawsuit can range from $0 to the millions. The monetary range depends on a variety of factors, ranging from how severe the affair/relationship was with the third party to the duration of the marriage and the economic impact it had on the plaintiff. 

Types of damages

If a plaintiff wants to sue the third party under alienation of affection tort, the claim needs to be on the basis that they experienced personal damage. If a plaintiff successfully proves that personal damage, then they can receive an award, such as those listed below.

• Compensatory damages: These are awarded to compensate the plaintiff for the actual harm suffered. This includes:
• Emotional distress: Compensation for the emotional distress caused by the loss of affection and companionship.
• Loss of consortium: Compensation for the loss of love, companionship, comfort, and sexual relations.
• Economic impact: Any financial losses resulting from the interference, such as lost financial support or expenses incurred due to the breakdown of the marriage.
• Punitive damages: These are awarded in cases where the defendant's actions were particularly malicious or egregious. They are intended to punish the defendant and deter similar behavior in the future.

Factors influencing awards

The amount of compensation the plaintiff can potentially receive upon a successful prosecution depends on several factors, and this will differ from one case to the next. Examples of factors include: 

• Severity of interference: The extent and nature of the third party’s actions and how directly they impacted the marriage.
• Duration of the marriage: Longer marriages with deeper emotional bonds may lead to higher compensation.
• Publicity of the case: High-profile cases may result in larger awards due to public scrutiny and the desire to set a legal precedent.
• Evidence quality: The strength and quality of the evidence presented to prove the claim
• State laws: Variations in state laws and legal precedents can influence the amount of damages awarded.

Take legal action under alienation of affection

Nobody wants to experience loss of affection from their spouse. This can cause not just emotional damage to a person but also impact their financial stability and more. Unfortunately, more than 21% of respondents on a Statista survey in 2021 reported cheating on their spouse, which was an increase from the year before, and this is only for the people who reported it.

Even after finalizing the situation with your spouse or former spouse, you may feel it’s unfair that the third party is getting off the hook without facing any consequences. And, whether or not you are divorced, if you live in one of the six states where alienation of affection exists, the third party can be held liable for their actions. If you can prove that a third party was responsible for that loss of affection from your spouse, you may have legal recourse. 

FAQs

Do I need a personal injury lawyer for an alienation of affection case?

Yes, it is highly recommended to consult with a personal injury lawyer who specializes in these cases. Legal expertise is crucial for navigating the complexities of proving intentional interference and securing adequate compensation. We can recommend an attorney who can help you with your alienation of affection case.

How long does an alienation of affection case take?

The duration of an alienation of affection case can vary, often taking several months to years, depending on the complexity of the case and the court’s schedule.

What’s the difference between alienation of affection and criminal conversation claims?

A criminal conversation claim is another tort involving adultery, requiring proof of sexual intercourse between the defendant and the plaintiff’s spouse. Alienation of affection does not require evidence of a sexual relationship but focuses on the loss of love and affection.

Can you file an alienation of affection lawsuit against someone other than a lover?

Yes, alienation of affection claims can be filed against anyone who intentionally interferes in the marital relationship, not just a lover cheating spouse. This can include friends, family members, or even employers.

How long do you have to file an alienation of affection lawsuit?

The statute of limitations for filing an alienation of affection lawsuit varies by state, typically ranging from one to three years from the date of the last act of interference. It is important to check specific state laws to ensure timely filing.

What if any party involved in an alienation of affection claim does not live in the state where the tort exists (but one of the parties does?)

If a party involved in an alienation of affection claim does not reside in the state where the tort is recognized, the court must determine if it has jurisdiction over that party. This often involves assessing whether the defendant has sufficient connections to the state, such as having engaged in relevant actions there or causing harm within the state. 

Many states have long-arm statutes that allow courts to extend jurisdiction over out-of-state defendants if their actions have significant ties to the state. As long as the court can establish jurisdiction and the venue is appropriate, the claim can proceed in the state where the tort is recognized, even if some parties are from other states.

Does the couple need to be divorced in order for the plaintiff to file an alienation of affection claim against the third party?

No, the couple does not need to be divorced for an alienation of affection claim to be valid. The key requirement is that the plaintiff can demonstrate that the actions of the defendant's conduct third party led to the loss of love and affection in the marriage, regardless of whether the couple is still married or has already divorced.

Does it matter who filed for divorce prior to making an alienation of affection claim?

In an alienation of affection claim, it generally does not matter who filed for divorce. What matters is whether the plaintiff (the spouse bringing the civil claim itself) can prove the necessary elements of the tort, which are:

What if my spouse and I have reconciled? Can I still file an alienation of affection claim?

If you and your spouse have reconciled and restored affection, it can complicate an alienation of affection claim, but it does not necessarily preclude you or her spouse from suing the third party. The primary focus of an alienation of affection claim is to address the harm caused by the third party's actions during the period when affection was lost.