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Alienation of Affections -- Still Alive:

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim.

Many people assume that these two torts are dead. But some states -- Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah -- still recognize them (or at least recognize the alienation of affections). And it turns out that they still account for a significant amount of litigation, not much less than some well-established torts whose viability no-one doubts.

It seems that the main jurisdiction in which there's a good deal of alienation of affections litigation is North Carolina. My search through the NC-CS and NC-TRIALORDERS databases in Westlaw uncovered 38 cases from 2000 to mid-2009, and it seems likely there were more (since those databases don't offer a complete list even of decided cases, and entirely exclude ones that were filed but were settled before any decision). By way of comparison, the well-established tort of slander (oral defamation) seems to be litigated only slightly more often than alienation of affections in North Carolina. The well-established right of publicity seems to be litigated in North Carolina much less often than alienation of affections (2 cases since 2000 in the NC-CS and NC-TRIALORDERS databases, as opposed to 38 for the alienation of affections).

Even on a national basis, a search for sy("right of publicity" ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) through the ALLCASES database yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. Now naturally these results may not be representative of all cases litigated through trial, or of all cases filed in court. (For instance, there might be reasons why people might be more or less likely to settle right of publicity cases than they are to settle alienation of affections cases.) Also, my right of publicity query might have excluded some cases in which the matter is discussed solely as "invasion of privacy" (from which the right of publicity derived).

Still, the comparison suggests that alienation of affections claims are not vastly less common than right of publicity claims, which no-one treats as moribund. In many states, it has indeed been abolished, so it's not of practical importance to lawyers who litigate solely under the law of those states (though even California lawyers might come across it if, for instance, their clients acted tortiously in North Carolina, or perhaps even in California with a visiting North Carolinian). But I think it should still be seen as being of scholarly and pedagogical significance to tort scholars and teachers, untainted by a sense that it is somehow entirely moribund.

Related Posts (on one page):

  1. It Is Only an Accident
  2. Alienation of Affections -- Still Alive:
Melancton Smith:
Seems like an all-to-common attempt to blame a third party for your significant other's transgressions. In an episode of 'Eureka' where dreams were shared, one character's wife attacks a woman who his husband had been dreaming about. My wife wondered aloud why it always seems like that is the pattern.
7.28.2009 11:15am
Joseph Slater (mail):
Eugene:

Did you notice any gender splits in the actual cases? By which I mean, are men more likely to be plaintiffs, suing other men, or is it more common for women plaintiffs to sue other women, or is both in roughly equal measure?
7.28.2009 11:29am
NCResident:
FWIW, alienation of affection may not be too long for this world (or at least North Carolina):

NC Lawmakers Scale Back Suits Punishing Paramours

As I recall, much of the debate centered around the allegation that alienation of affection was primarily used by the wealthy in revenge suits, and was therefore undesirable.
7.28.2009 11:30am
einhverfr (mail) (www):
So, suppose you have a friend who constantly complains about his/her marriage (but minor things, nothing major-- stuff like cooking choices, cleaning habits, etc) in one of these states. Suppose instead of offering advice on how to live together, I advise that if it's not working because of incompatible lifestyles, it is better to divorce and find someone with more commonality in those cases. Alienation of affections if he/she follows the advice?

Suppose the friend just found out the spouse's business was worth considerably more. Could advising a friend to divorce and push for a larger settlement on that basis be alienation of affections?

It seems to me that alienation of affections, while possibly appropriate in truly extraordinary cases, is mostly just an attempt to avoid holding individuals accountable for their own choices and instead blame someone else.

Maybe the fact that the tort is perceived as moribund will help it BECOME moribund.
7.28.2009 11:48am
einhverfr (mail) (www):
7.28.2009 11:55am
tarheel:
However often it finds its way into a published case in NC, that is the tip of the iceberg. It is probably in at least 10X as many initial demand letters designed to gain an edge in divorce proceedings.
7.28.2009 11:59am
Eugene Volokh (www):
NC Resident: As I read the bill, it would retain the cause of action, and simply (1) impose a three-year statute of limitations, (2) exclude any conduct "that occurs after the date of separation of the claimant and the claimant's spouse," and (3) prevent lawsuits against corporate employers of the defendant (or other alleged corporate facilitators of the tortious conduct). That's very far from an outright repeal of the cause of action; if anything, it's a further legislative ratification of the action as to pre-separation conduct. Or am I missing something?
7.28.2009 12:02pm
NCResident:
Eugene: I'm sure you're right. I hadn't actually seen the text of the bill and my knowledge of it was solely the link I provided and what I heard on radio news several weeks ago.
7.28.2009 12:23pm
Jeff R.:
Aren't some of these just added on in general injury cases? I think that there was an AofA claim in the auto accident case I was a juror on, based on the theory that the back injury affected his ability to, ahem, perform...
7.28.2009 12:30pm
Anon21:
Jeff R.:
Aren't some of these just added on in general injury cases? I think that there was an AofA claim in the auto accident case I was a juror on, based on the theory that the back injury affected his ability to, ahem, perform...

I thought that such claims were generally termed "loss of consortium." As I understand it, a different tort. But perhaps it's just the British term for what is called alienation of affection in the United States.
7.28.2009 12:38pm
einhverfr (mail) (www):
EV:

Actually, it would also prevent torts against corporations specializing in arranging adulterous unions, as far as I can understand. Presumably sole proprietorships could still be sued however. However the question is what the chapter 50 reference is about case-law-wise and what impact that has.
7.28.2009 12:43pm
ronnie dobbs (mail):
I practice in a NC law firm. Helpful hint when defending AofA claims: Check the plaintiff's marriage records. One of the elements to an AofA claim is a valid marriage, and you'd be surprised by how many folks (particularly on the lower end of the socioeconomic scale) don't bother tidying up old marriages before entering into new ones. If you can find a defect in the plaintiff's marriage, the AofA claim goes away.
7.28.2009 12:49pm
Wallace:
My 1L summer was spent clerking for a state judge in a civil court. The overwhelming majority of matters was medical malpractice. However, the most aggressively litigated matter was an assault tort (the only assualt tort) that arose out of a divorce case between two millionaires. The alleged assault in this case was not a punch, kick, or shove. Instead, the victim was hit by flecks of spittle when the other spouse "got in her face" during an argument related to the divorce.

Perhaps a reason there are so many "alienation of affection" claims is because they arise from the same passion that motivated the assault. People can shrug off slander from strangers, but they really want to stick it to an ex-spouse.
7.28.2009 12:55pm
AofA765 (mail):
Here's a recent case in Indiana involving a well-known car dealer: http://news.puggal.com/bob-rohrman/
7.28.2009 1:06pm
bobh (mail):
anon21:

Loss of consortium is not the same as alienation of affection. Loss of consortium, as Jeff R. implies, has to do with loss of "ability to, ahem, perform." That is, it is Spouse A's separate cause of action against the tortfeasor, when Spouse B has been injured by the tortfeasor, to recover for Spouse A's damages because Spouse B has been rendered unable to "ahem, perform" -- not just to perform sexually (though that is a major component of the tort), but to perform the gamut of duties and services that one spouse normally performs for the other in the course of their relationship. Here is a definition I found by Googling the term:

"Damages to the spouse of an injured person arising out of the need of the spouse of the injured person (plaintiff) to perform more services and/or inability to conduct certain activities with the injured spouse. For example, if a husband sustains personal injuries in an accident, the wife might be entitled to any loss of her husband's love, companionship, comfort, affection, society, solace, and/or moral support, in addition to any loss of enjoyment of marital relations."
7.28.2009 1:41pm
Anon21:
bobh:

Right, that was my first instinct, that they were distinct claims, and that loss of consortium would be the appropriate one to pursue in the personal injury context. I just wasn't entirely certain. Thanks for clearing that up.
7.28.2009 3:37pm
Anderson (mail):
Chip Pickering, son of the briefly famous federal judge and an alumnus of the Ensign-Sanford Christian Adulterers' Association, is in the news re: his wife's alienation of affection suit vs. Pickering's alleged paramour.

Amusingly, the plaintiff is represented by a former justice of the state supreme court -- one who had called for the tort to be judicially abolished.
7.28.2009 4:01pm
einhverfr (mail) (www):


Amusingly, the plaintiff is represented by a former justice of the state supreme court -- one who had called for the tort to be judicially abolished.


Maybe this is a good way for him to accomplish this....
7.28.2009 4:24pm
ReaderY:
When a million dollar award was upheld back in the 1990s they started getting more popular in North Carolina. There have been several larger judgments since.

The criminal conversation tort is also quite alive and well.
7.28.2009 11:01pm
ReaderY:
Professor Volokh:

The proposed changes shows the liveness of the tort by fine-tuning it to address some very recent appelate decisions. The fine-tuning in many respects protects and strengthens its core. The legislature has repeatedly rejected bills to abolish it.

The 3-year statute of limitations addresses the N.C. Supreme Court's decision in Misenheimer v. Burris (N.C. 2006) that the 3-year statute of limitations begins running when the conduct is first discovered or should have been discovered. The act clarifies it runs from the end of the defendant's conduct.

The pre-separation part addresses McCutchen v. McCutchen(N.C. App. 2006), holding the tort applies to post-separation conduct.

The corporate liability limitation addresses a Mississipi case, Children's Medical Group v. Phillips (Lawyers USA No. 9934606) Mississippi Supreme Court No. 2005-1A-00593-SCT. Oct. 26, 2006, permitting a lawsuit against an employer for an affair conducted on company time under a theory of respondeat superior.

Keeping the tort a personal tort doubtless avoids a rash of lawsuits against businesses which might cause the business lobby to oppose it.
7.28.2009 11:36pm
Rebelyell:
In Mississippi, a high school classmate of mine (male) won a million dollar verdict about six years ago when a wealthy businessman ended up marrying his wife. It was upheld. A college friend and attorney lost $1.5 million, upheld, for getting involved with a client. I think they got married, though. So the tort is alive and well in Mississippi.
7.29.2009 1:15am
Anderson (mail):
Maybe this is a good way for him to accomplish this....

It's win-win for him!

The latter case mentioned by Rebelyell is briefly described here, with a link to the appellate decision affirming the judgment.
7.29.2009 11:32am
Bryan Gates (www):
I am a North Carolina attorney in private practice since 1996. I have defended one at trial and settled one out of court. The cases are not uncommon. I doubt that a Westlaw search would give any realistic picture of the frequency of cases filed, since trial courts are paper-based.
7.29.2009 1:47pm

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