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In Law, what is Alienation of Affection?

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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
  • Last Modified Date: 08 November 2016
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Alienation of affection is a controversial American law that allows legal action against a third party who can be shown to have contributed to the end of a marriage. Although no longer applicable in many areas, eight US states continue to allow alienation of affection suits to be filed. Many modern legal scholars consider these laws to be archaic and no longer relevant to modern law, but courts continue to see many suits filed under this law each year.

Although requirements vary somewhat from state to state, an alienation of affection lawsuit generally seeks to prove a causal relationship between a marriage becoming dysfunctional or unsustainable and a third party's influence. Often, the charges are brought against a third party believed to be romantically or sexually involved with a married person. In some instances, charges can be leveled against a third party who has counseled or suggested divorce, such as a therapist, relative, or even member of the clergy. Most versions of the law stipulate that the accused party does not necessarily have to intend to cause the end of a marriage, but nonetheless can be shown to have contributed to divorce or separation.

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During the 19th century, most states in America had some form of the alienation of affection law on the books. As modern attitudes toward marriage and divorce changed throughout the 20th century, these laws were slowly overturned in many states, either by legislation or by a court's ruling. At the turn of the 21st century, only eight states retain some law regarding alienation of affection: Hawaii, Missouri, Mississippi, New Hampshire, New Mexico, North Carolina, Utah, and South Dakota.

It is important to distinguish alienation of affection laws from those permitting legal action in the case of adultery. Adultery cases, which are common in some US states as well as internationally, are brought against a married person who is believed to have had sexual relations outside the marriage, thereby breaking the contract of the marriage. In areas of the United States where adultery cases are admissible, the rulings often have an affect on child custody and spousal support decisions. Alienation of affection cases are instead brought against a third party rather than one of the married pair.

Internationally, alienation of affection laws are difficult to pinpoint. Although many countries have stiff laws against adultery, they vary greatly in the method of apportioning guilt or blame. In the United States, where alienation laws were once a near universal part of state law, the concept has fallen mostly out of legal fashion.

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donasmrs
Post 7

I agree with those who believe this law is archaic. I think this law made more sense when divorce was unacceptable due to social and religious norms. People didn't want marriages to break up so alienating a partner's affection had to be discouraged. But now divorce is more acceptable and sometimes even a good thing in unhealthy marriages.

ddljohn
Post 6

@Markerrag-- The article specifically wrote about the distinction between adultery cases and alienation of affection cases. They are not the same.

If a partner has committed adultery, that is a grounds for divorce. But the partner is charged with it, not the third person they had an affair with. I'm not saying that the third-party did something right. But they're not the one in this particular institution of marriage. If there is adultery, then the partner should be taken to court for it. Most people don't bother with an alienation of affection charge. I think they just want these people out of their lives as soon as possible so that they can move on.

stoneMason
Post 5

My parents divorced when I was a teenager because of alienation of affection. There was also adultery but there were also many people -- relatives and friends of my dad-- who encouraged him to end his marriage and ignore his children. I personally would like to see all those people punished. It is not a decent thing to break up someone's home. And some people have more influence on relationships than we realize.

Logicfest
Post 4

@Soulfox -- I understand your point, but where do you draw the line? You've said someone should be able to punch his wife's boyfriend, but what if that irate husband stabbed the new lover? Shot him?

The law should apply equally to all, shouldn't it?

But, back to the original point. Marriages aren't falling apart because of the lack of alienation of affection laws, but they are falling apart because society seems to be decaying. You can't fix that, no matter how many laws you pass.

Soulfox
Post 3

@Markerrag @Melonlity -- I would push for more of a middle ground. I would not bring back alienation of affection laws, but I would allow some criminal defendants to get away with certain things because someone is sleeping with their spouse.

Here's what I mean. I knew a guy who's wife was having an affair with a fellow. My friend found out about it and was, understandably, upset. He saw his wife and her new lover walking into a restaurant. He stopped his car, punched the new boyfriend dead in the face, got in his car and left.

He was charged with assault and battery after the new boyfriend complained to the cops. In an ideal world, my friend would not have had to deal with any charges at all. What's wrong with popping someone who's running around with your wife?

Markerrag
Post 2

@Melonlity -- I don't know if bringing back those laws would work. Few will argue that the high divorce rate that has plagued a lot of parts of the world is alarming, but would the threat of an alienation of affection suit really keep people from fooling around with married people?

It is hard to imagine the desired deterrent effect would work. Think about it. The death penalty is supposed to deter murder, but has it really worked out that way? Not really. If someone is determined to murder, that person will commit murder. If someone is determined to have an affair, they will have one of those.

Melonlity
Post 1

I know the trend is to get rid of these laws, but one might argue that effective alienation of affection laws could deter the number of divorces in the United States. Think about it. If someone realizes they could be slapped with a lawsuit for catting around with a married person, they might decide to leave that relationship alone.

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