When people find their "soul mates," marriage usually follows. You vow to be truthful, faithful and loving to each other for the rest of your lives. Sometimes, one spouse doesn't live up to those promises, and an adulterous or extra-marital relationship threatens the marriage.

In most states, when you discover your spouse has been unfaithful, your only legal solution is to file for divorce. In a few states, however, you may have another option.

A Woman Scorned Fights Back

Cynthia Shackelford and her husband were married for 33 years. At some point in time, her husband Alan began seeing another woman, Anne Lundquist.

When Mrs. Shackelford found out about the relationship, her first response wasn't to file for divorce. In fact, it's not clear if she ever wanted a divorce. Instead, she filed a lawsuit against Lundquist under a North Carolina law known as "alienation of affection." And she won, big. A judge in a North Carolina court ordered Lundquist to pay Mrs. Shackelford $9 million in damages.

What is Alienation of Affection?

Alienation of affection is where one spouse sues the other spouse's partner for taking the other spouse's love and affection away from the innocent spouse. In other words, the "other man" or the "other woman" gets sued for breaking-up the marriage.

States Recognizing the Theory

In addition to North Carolina, Illinois, Mississippi (PDF), New Mexico, South Dakota and Utah are the only states still allowing such lawsuits. All other states and the District of Columbia have abolished it, primarily because it's a "revenge" law and does little or nothing to protect marriages.

How It Works

The laws may differ a bit depending on the state, but in general the spouse who's suing has to prove:

  • The spouses were married and there was love and affection in that marriage
  • The "cheating" spouse alienated or withheld love and affection from the suing spouse
  • The "other man" or "other woman" caused or helped to cause the alienation
  • The "other man" or "other woman" knew or should have known his or her conduct would cause the alienation

The suing spouse doesn't have to prove the other spouse and the "other man" or "other woman" had a sexual relationship.

Money Damages for the Spouse Who Sues

The suing spouse may be awarded compensatory damages if the spouse wins the case. This is money to pay for the actual loss of the other spouse's affection and companionship, as well as loss of support. Mrs. Shackelford was awarded $5 million in compensatory damages.

The suing spouse may also get punitive damages, which punish the wrongdoer. For these damages, the suing spouse has to prove the "other man" or "other woman" acted willfully and maliciously. Mrs. Shackelford got $4 million in punitive damages, presumably because she proved her claims that Lundquist actively and deliberately set-out to seduce Mr. Shackelford, knowing he was married.

Criminal Conversion May Be an Alternative

Criminal conversion is similar to alienation of affections, and it's just as rare. Only North Carolina, Illinois, Mississippi,  New Mexico, and South Dakota have such a law. Again, the innocent spouse sues the other spouse's partner. Despite its name, it's not a "criminal" action. It's a civil action, just like alienation of affection or the run-of-the-mill personal injury lawsuit.

To win in this type of case, the suing spouse needs to prove:

  • The spouses were married
  • The other spouse had a sexual relationship with the "other man" or "other woman"

Essentially, in this type of suit, the suing spouse claims the "other man" or "other woman" stole sexual relations that rightfully belonged to the suing spouse.

A spouse may sue for alienation of affection and criminal conversion at same time. It appears, however, Mrs. Shackelford chose not to sue Lundquist for conversion.

Your Options

Unless you live in one of the handful of states, your options are limited when it comes to dealing with an unfaithful spouse. You can either try to work things out and save the marriage, or you can get:

  • Legally separated. This is an option in most states. It allows you and your spouse to stay married, but you'll live separately and a court will decide matters such as child custody and support, alimony and property division. Later, you can reconcile and resume living together if you wish
  • Divorced. This is the legal termination of the marriage, and a court will decide child custody and support, alimony and property division

In states like North Carolina, you may have other options, and your bank account may get fat, but the odds are the outcome will be the same: The end of your marriage.

Questions for Your Attorney

  • What can I do if I win my alienation of affection lawsuit but the other person claims they can't pay the damages?
  • Can I sue my spouse's partner even if we've been divorced for five years now?
  • My wife "loaned" her boyfriend several thousands of dollars from our bank accounts. Is there any way I can sue him for the return of that money?

Tagged as: Family Law, Divorce, alienation affection, affection alienation