Alienation of Affection: What It Is, How It Works, and Where It Applies

Infidelity, emotional distress, and the breakdown of relationships can have long-lasting effects. When a marriage is affected by an affair or emotional estrangement, the emotional pain can sometimes lead to a desire for legal redress. One legal avenue that exists in a few states is alienation of affection. If you are seeking compensation for the damage caused by a third party interfering with your marital relationship, alienation of affection might be the solution.

What is Alienation of Affection?

Alienation of affection is a legal term used to describe a lawsuit in which one spouse sues a third party (the person with whom their spouse had an affair or otherwise emotionally connected) for interfering with the marriage and causing emotional harm. The primary legal premise behind the claim is that the third party “stole” the affections or love of the spouse, thus damaging the marriage.

While this type of lawsuit is not common in all states, in some jurisdictions, it provides a legal remedy to spouses whose marriages have been harmed by the actions of an outside party.

Key Elements of Alienation of Affection Claims

For a claim to be successful, several key elements must typically be proven in court:

A Genuine Marital Relationship: You must be able to prove that your marriage was once a loving and affectionate relationship before the third party’s interference. If the marriage was already in trouble or lacked affection, it may be more difficult to prove that the third party’s actions caused harm.
Interference by the Third Party: The third party must have intentionally interfered with your marital relationship. This usually means that they engaged in an affair, emotionally manipulated your spouse, or otherwise caused your spouse to lose affection toward you.
Damage to the Marital Relationship: You must show that the actions of the third party led to a breakdown of the marriage, including emotional harm. This could include separation, divorce, emotional distress, or the loss of companionship that you once enjoyed with your spouse.
Causation: You need to prove that the third party’s actions directly contributed to the deterioration of your marriage. Simply suspecting that your spouse is emotionally distant or having an affair is not enough; there must be a direct connection between the third party’s actions and the damage to the marriage.

How Does Alienation of Affection Work?

In an alienation of affection lawsuit, the spouse whose marriage has been damaged (the plaintiff) sues the third party (the defendant), typically the person involved in the affair or who otherwise contributed to the emotional rift. The goal is to seek financial compensation for the emotional distress, pain, and suffering caused by the interference in the marital relationship.

Emotional Distress and Damages: If the court finds in favor of the plaintiff, they may award damages for emotional distress, loss of companionship, and the harm caused to the marital relationship.
Burden of Proof: Proving the claim can be difficult. It is essential to gather evidence that shows not only the affair or emotional involvement but also the significant emotional harm caused. This could involve text messages, photos, social media conversations, and witness testimonies.

Where is Alienation of Affection Legal?

While alienation of affection is recognized in a few states, it is not a universally accepted legal claim. In fact, many states have abolished this tort (civil wrong) due to concerns over privacy, marital autonomy, and the desire to avoid interference in private relationships. However, in the states where alienation of affection is still a valid claim, the process may differ slightly depending on local laws.

Alienation of Affection States and What You Need to Know

North Carolina: One of the most well-known states that recognizes alienation of affection claims. North Carolina allows a spouse to sue a third party if they can prove that their cheating spouse affections were interfered with due to an affair or emotional manipulation.
Mississippi: Mississippi is another state where these claims are still viable. In Mississippi, a spouse can sue a third party for both alienation of affection and criminal conversation (adultery).
South Carolina: South Carolina also allows lawsuits. If a third party is found to have interfered with a marriage, they can be held financially accountable for damages caused by the emotional harm.
Utah: Utah continues to recognize the claims and allows spouses to pursue legal action if a third party’s actions caused emotional harm to the marriage.
Hawaii: Although Hawaii no longer recognizes criminal conversation claims, it still allows for alienation of affection lawsuits.
New Mexico: New Mexico also allows these lawsuits, though they have become less common in modern legal practice.

States Where Alienation of Affection Claims Are Not Recognized:

The majority of states do not allow alienation of affection lawsuits, particularly in no-fault divorce states like California, Florida, and Texas. In these states, the legal system focuses on the dissolution of the marriage itself, rather than holding a third party responsible for emotional harm caused by infidelity.

California: California is a no-fault divorce state, meaning that infidelity or marital misconduct is not considered when determining property division or spousal support. Thus, alienation of affection lawsuits are not allowed.
Florida: Like California, Florida is a no-fault divorce state, where claims of alienation of affection are not recognized in court.
Texas: Texas also follows no-fault divorce laws, and as such, alienation of affection lawsuits are not allowed.

Alienation of Affection vs. Criminal Conversation

In some states, a claim for alienation of affection can be pursued alongside a criminal conversation lawsuit. Criminal conversation refers to the act of adultery itself—essentially, the spouse can sue the third party who engaged in sexual relations with their partner.

Alienation of Affection: Focuses on the emotional harm caused by the third party’s interference in the marriage.
Criminal Conversation: Centers on the act of adultery and allows a spouse to sue the person who had an affair with their spouse.

In states like North Carolina, Mississippi, and South Carolina, both of these legal claims may be available. However, the distinction lies in the fact that alienation of affection can also cover emotional manipulation and non-sexual interference, while criminal conversation specifically addresses physical adultery.

Can You Sue Your Spouse for Alienation of Affection?

It’s important to note that alienation of affection lawsuits typically involve a third party, not the spouse committing the infidelity. However, if you are seeking a legal remedy for your spouse’s infidelity, a divorce may be the more appropriate course of action. While some states allow fault-based divorces in which infidelity is considered, suing your spouse directly for cheating is not generally an option. If you’re in a state where alienation of affection claims are recognized, you can seek financial compensation from the person who had the affair with your spouse, not from your spouse themselves.

How to File an Alienation of Affection Lawsuit

If you live in a state where alienation of affection is recognized and you’re considering filing a lawsuit, here are the general steps you should follow:

Consult with a Family Law Attorney: Given the complexity of alienation of affection claims, it is critical to seek professional legal advice before proceeding. A qualified attorney will guide you through the process and help you understand your rights.
Gather Evidence: You will need to collect evidence to support your claim, such as text messages, emails, photographs, social media posts, and witness testimony that demonstrates the interference with your marriage.
File the Lawsuit: Your attorney will help you file the appropriate paperwork with the court and begin the legal process.
Present Your Case: You will need to prove that the third party’s actions directly contributed to the emotional damage of your marriage.
Await a Verdict: If the court finds in your favor, they may award you damages for the emotional harm and loss of affection caused by the third party’s interference.

At the end of the day, alienation of affection is a legal remedy available in select states that allows a spouse to sue a third party for interfering with their marriage and causing emotional harm. It’s important to understand the legal process and the requirements for filing such a claim. While it is a rare legal action, alienation of affection provides a way for those whose marriages have been affected by infidelity or emotional manipulation to seek financial compensation.

If you are considering pursuing this type of claim, consulting with an experienced family law attorney can help you navigate the complexities of the process and determine if it’s a viable option for your specific situation.