Written by Avvo Staff

Alienation of Affection Lawsuits: Are They Ever a Good Idea?

Alienation of affection, in legal terms, means willfully and maliciously interfering with someone else's marriage. In a few states, you can file a lawsuit against someone who does this.

Of course, “can” and “should” are not necessarily the same thing. These suits can be hard to win, so filing one could be a lot of expense and stress with little or no payoff. Additionally, only a few states allow this as an option.

The Basics of an Alienation of Affection Lawsuit

In an alienation of affection lawsuit, you claim that a third person has caused you to lose the love and affection of your spouse.

This person could be anyone. Often it's someone your spouse is having an affair with, causing him or her to want to leave your marriage.

But this suit doesn't have to be based on sex. An online or “emotional” affair can also give you a legal cause of action.

So could a family member or friend who deliberately sets out to destroy your marriage or change the way your spouse feels about you. This person may, for example, convince your spouse that he or she would be happier without you.

You can name any of these people in an alienation of affection lawsuit.

Whoever you name, you will have to prove several things in order to win:

  1. You and your spouse loved each other (remember, having problems does not mean you didn't love each other)
  2. The love you shared was lost
  3. The other person's deliberate and malicious actions caused or contributed to this loss of love and affection

The third point is where these cases can fall apart because it involves proving intent. Family and friends could claim they were simply supporting a loved one (your spouse) who seemed unhappy.

The “other woman” or “other man” may claim no intent to break up your marriage. But intent matters less if you have proof they had sex, because most people understand that sex with a married person is likely to cause trouble in that person's marriage. However, you must be able to prove that the other person knew your spouse was married when he or she committed the affair.

States That Allow These Suits

Even if you have a strong case, it's unlikely you'll be able to bring a legal action, because most states have abolished alienation of affection as a cause to file suit.

These suits are still allowed by fewer than a dozen states:

  • Hawaii
  • Illinois
  • Mississippi
  • New Hampshire
  • New Mexico
  • North Carolina
  • South Dakota
  • Utah

Even where allowed, there may be restrictions. For example, North Carolina has a three year statute of limitations. The statute specifies you have to file within three years after the last act that helped cause the alienation. For example, the last time your husband's mistress had sex with him or the last time your wife's brother urged her to leave you.

For the most part, where you live matters less than where the activity leading to alienation of affection happened. For example, you may be able to file in Illinois if your wife was meeting a lover during business trips there or in New Mexico if your husband's online love lives there.

When is an Alienation of Affection Suit a Good Idea

Obviously lawmakers in most states believe it's never a good idea, since they've abolished its use. This kind of suit can certainly increase the volatility of an already emotional situation. Worse, it makes the whole situation public (lawsuits are generally a matter of public record).

If you do file, the state may allow one or both of these kinds of damages:

Compensatory: This is payment for the loss of your spouse's affection and support.

Punitive: This punishes the person for wrongdoing.

States may limit which kind and the total dollar amount you can get. For example, Illinois only allows for actual monetary losses due to the marriage ending.

So when should you sue? It's up to you, of course, but you may want to consider whether the damages you're likely to get are enough to be worth making these situations public.

A lawyer in the state where you intend to file can help you understand that state's laws, what kinds of damages you can expect, and whether your case is strong enough to hold up.

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