Alienation of affections

Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors and therapists or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections. As of 2016, six US states (Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah) recognize this tort.

The tort of alienation of affections is similar to the tort of criminal conversation.

An action for alienation of affection does not require proof of extramarital sex. An alienation claim is difficult to establish because it comprises several elements and there are several defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) the defendant's malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact the marriage. Thus, the defendant has a defense against an alienation claim where it can be shown that he or she did not know that the object of his or her affections was in fact married. It is not a defense that the guilty spouse consented to the defendant's conduct, but it might be a defense that the defendant was not the active and aggressive seducer. If the defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

As of 2016^[update], alienation of affection was recognized in five United States jurisdictions: Hawaii, North Carolina, Mississippi, South Dakota, and Utah. The tort of alienation of affection was inherited as part of the common law. The law was codified in some states, the first one being New York with legislation in 1864, and similar legislation existed in many U.S. states in the late 19th and early 20th centuries. Since 1935, this tort has been abolished in 42 states, including New York. Most States have abolished the action by legislation, but some came to an end by judicial review. For example, in 1927, actions for alienation of affection were abolished in Louisiana as a result of Moulin v. Monteleone, 165 La. 169, 115 So. 447. See also South Carolina case Russo v. Sutton, 422 SE 2d 750 (1992), abolishing the heart balm action for alienation of affection.

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