Given the staggering divorce and infidelity statistics, it is not uncommon for a non-cheating spouse to want to sue the lover of the cheating spouse.  There are 43 states that do not allow such lawsuits.  Only 7 states continue to allow such lawsuits.  This article analyzes the arguments on each side.

Background

The 7 states that still allow such lawsuits are Hawaii, Illinois, New Hampshire, Mississippi, North Carolina, New Mexico, South Dakota and (surprisingly given its reputation for polygamy) Utah.  The laws that permit such lawsuits are called "Alienation of Affection Laws".  Generally, if a non-cheating spouse can present evidence that (a) the husband and wife were in love, (b) some type of intimacy (not limited to physical intimacy, since in this electronic age some people can find intimacy through the Internet) caused that love to deteriorate, and (c) the lover (physical or not) intentionally tried to destroy the husband and wife's affections.

So, suppose a wife's "friend" gets jealous because she thinks the wife has got it all.  The friend's ego causes her to try to ruing the perfect life of the wife by chatting with the wife's husband online, in a sexually gratifying manner.  After a few sessions, the husband gets addicted, and starts to resent the wife because she does not cause as much joy as his "Hans Solo" physical sessions on the net with the wife's friend.  The husband then mentally ignores the wife, and slowly but eventually falls out of love.  Under these circumstances, the above 7 states would allow the wife to file a lawsuit against the friend.

For Alienation of Affection Laws

The 7 states that still have these laws on the books contend that the laws are constitutional.  Under the Constitution, a state may pass a law that does not discriminate on the basis of race or gender if the law is rationally related to a legitimate government interest.  The 7 minority states contend that their governments have a legitimate interest in the institution of marriage, and that preventing adultery is rationally related to that interest.

The rational relationship prong is on its face understandable.  However, problems arise with the legitimate interest prong.  For instance, marriage is widely thought to be a religious institution, and the Constitution prohibits government from meddling with religion.  The 7 states counter by asserting that marriage may be done by a religious or civil ceremony.  Since judges can marry a couple just like a priest, these states argue that marriage is not exclusively a religious institution.

Against Alienation of Affection Laws

The majority, or the 43 other states, disagree.  These states recognize that, even if marriage is not exclusively a religious institution, nevertheless the government has no legitimate interest in regulating sex among consenting adults.  Otherwise, just how much further could government go probing into one's privacy.  An adult's sexual relations is perhaps the quintessential private activity.  If the government can regulate an adult's sexual activity, does any American even remotely have any ounce of freedom?

The other 43 states also recognize that statistics suggest that alienation of affection laws do not have any noticeable effect on marriage.  Indeed, North Carolina (one of the 7 minority states) has the fifth highest divorce rate in the country.  So one must really wonder if, factually, even though it may seem counterintuitive, whether the laws are really rationally related to protecting the institution of marriage.

Conclusion

Only 7 states in the U.S. continue to have alienation of affection laws.  The majority of Americans have opposed the laws on the grounds that (a) the laws are impermissible attempts by the government to impose religious morals on citizens, (b) the laws violate the right to privacy by attempting to regulate sexual activity among consenting adults, and (c) in reality statistics show that the laws have no affect on protecting the institution of marriage.

If you reside in one of the 7 states that allow such lawsuits, and if you believe you have evidence that the cheating spouse's paramour not only seduced the spouse, but did so intentionally to hurt you emotionally, then you should bring the matter to the attention of licensed divorce lawyers so they may analyze the evidence and advise you on whether and how to proceed.  If you do not live in one of the seven states, then you may still be able to file suit if (a) the adultery occurred in one of the seven states or (b) the cheating spouse's lover resides in the one the seven states.


About the Author

Jason Ostendorf is a Maryland divorce lawyer.  His firm handles all aspects of divorces in Maryland, including but not limited to child custody, visitation, alimony, property division, separation agreements, and more.  For updates on legal news and consumer issues, follow him on Twitter at www.twitter.com/LawOfficeJasonO.