Alienation of Affections

The alienation of affections tort was first established by New York state law in 1864 to compensate spurned spouses suffering from adultery. A cause of action based on alienation of affections rested on the principle that wives were the property of their husbands, so that "stealing" a wife away from her husband deprived her husband of his rightful property interests.

An action for alienation of affections could be brought against any person who enticed a spouse away from the marital relationship, including lovers, in-laws, friends, professional counselors and members of the clergy who counsel divorce. However, since 1935, the alienation of affections tort has been abolished by at least 39 states as an archaic and outdated form of revenge.

Substituting Alienation of Affections With IIED

Since most states have abolished alienation of affections, wronged spouses have tried to recover damages under the cause of action known as intentional infliction of emotional distress (IIED). Courts have generally recognized IIED as separate and distinct from alienation of affections, so that IIED may be available against a third party for conduct that breaks up a marital relationship, even in states that have abolished alienation of affections. To bring a successful IIED claim, the party suing must prove four elements:

• Conduct that is intentional or reckless
• Conduct that is extreme and outrageous
• The wrongful conduct caused the emotional distress
• Severe emotional distress

Still, courts approach IIED claims in the marital context with great caution, and the burden of proving outrageous conduct is a heavy one for the aggrieved spouse.

States That Still Recognize Alienation of Affections

Despite criticism that alienation of affections lawsuits are outdated, several states still recognize alienation of affections, having upheld as much as $500,000 in punitive damages for the suing spouse. States that still recognize alienation of affection include:

• Illinois
• Mississippi
• Utah
• North Carolina