Alienation of Affection
Created by FindLaw's team of legal writers and editors | Last reviewed May 31, 2023
Alienation of affection and criminal conversation are causes of action (legal claims) that can allow spouses to recover compensatory damages and punitive damages after a marriage ends. These dignitary torts (also known as heartbalm torts) can be distinguished from other intentional torts. They cause harm to a person's romantic dignity or reputation instead of causing physical injury.
Alienation of affection or loss of affection is an example of a dignitary. The harm suffered is not a physical injury. Rather, it is the loss or alienation of love in a marriage. Similarly, a criminal conversation claim (a civil claim despite its name) involves adultery, i.e., sexual intercourse with a married person that destroys their marriage.
A deserted spouse can file an alienation of affection lawsuit against a third party that he or she believes is responsible for the marriage's failure. Most jurisdictions have abolished this type of tort. But there are still some states that allow the filing of alienation of affection lawsuits. These are often handled in the common law areas of personal injury law as well as family law.
Whether it's your in-laws, friends, or other loved ones who have suffered similar situations, a family law attorney may be able to help.
Proving an Alienation of Affection Claim
Currently, the tort of alienation of affection is available in six states: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. The elements necessary to prove your case will depend on the laws of each state. However, the plaintiff generally must prove the following:
- There was love in the marriage;
- That love was alienated and destroyed; and
- The defendant caused or contributed to the loss of love/affection.
Typically, the plaintiff's spouse can file these types of suits against the paramour or lover with whom the spouse had an extramarital affair. However, unlike the tort of criminal conversation, it's important to note that proof of extramarital sexual intercourse or sexual relations is generally not required to succeed in an alienation of affection claim.
There have been instances in which the defendant in an alienation of affection lawsuit has been a clergy member, therapist, or counselor who advised a spouse to seek a divorce. In these cases, wronged spouses are deprived of genuine love in their marital relationships as a result of the defendant's conduct and wrongful acts.
In states where you can't sue for alienation of affection, you may be able to sue for loss of consortium instead.
Defenses to an Alienation of Affection Lawsuit
There are a few defenses available to a defendant in an alienation of affection lawsuit. The plaintiff doesn't have to prove that the defendant had the intention of destroying the marriage or creating mental anguish. Rather, they must prove that he or she intentionally acted in a way that would foreseeably impact the marriage.
Considering this requirement, it's a valid defense if the defendant didn't know that the person was married. It's also a possible defense if the defendant can provide evidence that the cheating spouse aggressively seduced the defendant.
Intentional acts or conduct by the defendant are a requirement for such a claim to succeed. Another possible defense is that the defendant's actions were inadvertent. Finally, if a defendant can show that a spouse's affections or the love in the marriage was already lost before his or her acts, this can also serve as a defense.
Get Legal Help With an Alienation of Affection Claim
When you or someone you love is harmed, it's natural to look for someone to blame. There are times when a particular person may be the reason for the harm that was suffered. Under the civil laws of the United States, you may be able to recover for damages you have suffered as a result of another person's intentional or negligent actions.
If you want to learn more about the alienation of affection law or have questions about other types of torts and legal issues, you may want to consider a client relationship with an experienced personal injury attorney in your area. Keep in mind that there may be a time limit known as a “statute of limitations" for you to file your lawsuit. It's better to get legal advice sooner than later.
For more information and resources related to this alienation of affection cases, you can visit FindLaw's Emotional Distress, Privacy, and Dignitary Torts section.
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