Alienation of affections

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At common law, alienation of affections is a tort action 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.

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History and scope

Alienation of affections was first codified as a tort by the New York state legislature 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.[1] Alienation is, however, still recognized in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah.[citation needed]

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) 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 on the marriage. Thus, defendant has a defense against an alienation claim where it can be shown that defendant did not know that the object of his or her affections was in fact married. It is not a defense that the non-innocent spouse consented to defendant's conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If 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.

North Carolina

In North Carolina, alienation of affections suits are still regularly pursued, with an estimated 200 lawsuits a year filed. Courts sometimes award large awards, with a few cases in recent years involving awards of over one million dollars. In March 2010, Cynthia Shackelford won a $9 million suit against her husband's alleged mistress.[2] The most recent case, with the judgment handed down early September 2010, boasted the second highest award in the history of such suits. Dr. Lynn Arcara successfully sued her former friend, Susan Pecoraro, who allegedly seduced Arcara's husband while Pecoraro was visiting the couple at their North Carolina home (Pecoraro lives in Maryland). Arcara was nearing the expected delivery date of their unborn child at the time, the couple's first, and her friend, Pecoraro, had come to help Arcara prepare the nursery for the soon-to-be-born child. The alleged affair took place in 2006, and the marriage ended in 2007. Lawyer Cynthia Mills, who represented Arcara, played up the fact that Arcara had been betrayed by her closest friend. Pecoraro's own marriage ended in 2007, after the affair had been discovered.[3] In North Carolina such lawsuits can be filed only for conduct prior to a separation; although, prior to changes in the law which went into effect in October 2009, the tort of criminal conversation applied to post-separation conduct as well.[4] The North Carolina legislature has repeatedly had bills to abolish the tort introduced, and declined to do so.[5] In 2009, the General Assembly approved legislation which placed some additional limits on such lawsuits.[6] The bill was signed into law by Governor Bev Perdue on August 3, 2009, and is codified under Chapter 52 of the North Carolina General Statutes:[7]

§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.

(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.

(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.[4]

An Alienation of Affections suit may be brought against an employer if one of these three circumstances is evident. 1) The employer authorized the employee’s acts; 2) The employee’s acts were committed within the scope of his employment and in furtherance of the employer’s business; or 3) The employer ratifies the employee’s acts.[8]

Each of the three limitations arose from a recent North Carolina legal case involving the tort. In Jones v. Skelly, N.C.App. 2009, the North Carolina Court of Appeals had held that the tort applies even to legally separated spouses. In Mesenheimer v. Burris, N.C. 2006, the North Carolina Supreme Court held that the statute of limitation commences when the affair should have been discovered rather than when it occurred. In Smith v. Lee, 2007 U.S. Dist. LEXIS 78987, the Federal District Court for the Western District of North Carolina noted that the question of whether an employer could be held liable for an affair conducted by an employee (e.g. while on a business trip for the employer) was still unsettled in North Carolina.

There is often confusion over where an employee's "scope of employment" ends. An example of this would be a minister having sex with a person that has been receiving counseling services from that minister. In theory the minister is acting within the scope of employment because it is their duty to provide these counseling services and it is through these services that they gain access to the victim.

Mississippi

The Mississippi Supreme Court, in Fitch v. Valentine, upheld the constitutionality of the state's alienation of affection law. 959 So. 2d 1012 (2007)

Criticism

Although some trial lawyers support such statutes, many divorce attorneys believe such laws should be repealed.[9] One North Carolina divorce attorney has written: "Adultery is not uncommon, but an alienation-of-affection case just polarizes everyone and devastates everything in its path including the children and both spouses....The world has changed. Women are no longer viewed as property. Alienation-of-affection is something that dates way, way back, and if there was ever a law that needed to be removed, this is it." [9]

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