It only applies to six states: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.
But if you live in any of those states and have an affair with a married person, you could be hit with a big, fat lawsuit. In 2010, a North Carolina woman named Cynthia Shackelford was awarded $9 million in a lawsuit against Anne Lundquist, who allegedly had an affair with her husband. One year later, Carol Puryer sued the “other woman” and was awarded a whopping $30 million.
Ouch!
And even if you don’t file a lawsuit, just the threat of litigation can be used to negotiate a more-favorable divorce for the aggrieved party. In these six states, alienation of affection can be a very powerful legal weapon.
Supporters of the statute claim it protects the sanctity of marriage, penalizes immoral conduct, and incentivizes spouses to avoid affairs.
Critics, of course, view it differently:
“Claims for alienation of affection are weaponized in divorces — for petty reasons,” Utah state Sen. Todd Weiler, a Republican, said in a statement. Weiler is sponsoring a bill that would make alienation of affection lawsuits all but impossible in Utah.
“Many feel that it is an archaic legal relic, …” he said. “Litigation is often fueled by a desire for vengeance or ‘blackmail’ rather than reconciliation. It forces the public disclosure of intimate details, harming families and children.”
And it can involve a lot of money.
If you believe in the sanctity of marriage, then it makes sense to protect it. So, perhaps the alienation of affection statute is a good, effective law: If it helps prevent families from breaking apart, then it’s a net positive.
Marriage, after all, is the backbone of our civilization. When we consider all the social costs associated with broken marriages, shattered families, and single-parent households, it’s in our national interest to strengthen the institution of marriage as much as we possibly can.
But there are also compelling reasons to scrap the statute altogether:
[Weiler] cites the law’s “antiquated origins” as a reason for repealing it.
“Once universal in the U.S., the tort has been abolished by the vast majority of states,” Weiler said. But even in states where the law remains on the books, he said, “high-ranking judges frequently call for its abolition, labeling it a ‘historical anomaly.’”
He also argues that it treats the cheated-on spouse as lacking free will.
“The tort ignores the free will of the ‘alienated’ spouse, treating them as a passive object bamboozled by a third party rather than an adult making an independent choice to leave a relationship,” Weiler said.
It takes two to tango. Whereas the affair partner certainly bears some responsibility for a marriage falling apart, shouldn’t the bulk of the blame fall on the cheating spouse?
The affair partner never put his/her hand on the Bible and vowed to be faithful — but the cheating spouse did.
Views on marital affairs have changed dramatically over the last 30 years. Back in the 1990s, the “enlightened leftists” preached that Bill Clinton’s sexual indiscretions were none of our business: All adults have affairs, so we should shut up and grow up. (As Time magazine reporter Nina Burleigh said, “I’d be happy to give [Bill Clinton] [oral sex] just to thank him for keeping abortion legal.”) But on popular youth-oriented social media sites like Reddit, cheating on a partner is now considered unforgiveable. A popular refrain is, “Once a cheater, always a cheater.”
Short of physical abuse, young people view affairs as the worst thing you could possibly do. (I’m guessing many came from households that were torn asunder because of cheating.) So, I wouldn’t be surprised if the alienation of affection statute returned with a vengeance, because that seems to be what Millennials and Zoomers want.
But that doesn’t mean it’s a good law.
I’ll be honest: I’m not sure if I support the statute or not. On one hand, if the institute of marriage isn’t worthy of protection, then what is? What could possibly be more important to society than marriage?
And why on earth should the affair partner be absolved from paying a penalty for the chaos they helped create?
But on the other hand, adults ought to be treated like adults. The cheating spouse was acting out of his/her volition; thus, the culpability is theirs. Don’t pass the buck — and don’t tie up our courts with lawsuits over consensual affairs.
Big government is already big enough. There’s no need for it to police sex acts between consenting adults — even if its motive is pro-marriage.
So what do you think, dear reader? Should the alienation of affection statute be adopted nationwide, because it strengthens the institution of marriage? Or should it be tossed atop the legal ash heap as an outdated, anachronistic provision from a long-forgotten era?
I think I feel the same way about the alienation of affection statute as Bill Clinton felt about the 1991 Gulf War: “I guess I would have voted with the majority if it were a close vote. But I agree with the arguments the minority made.”
Because there are strong, compelling arguments on both sides, but all the arguments are flawed.
Let me know your thoughts in the comments. I’m very curious to see if a consensus emerges.
