Alienation of affections

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Tort law I
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Part of the common law series
Intentional torts
Assault · Battery
False arrest · False imprisonment
Intentional infliction of emotional distress
Property torts
Trespass to chattels
Trespass to land · Conversion
Detinue · Replevin · Trover
Dignitary and economic torts
Slander and libel · Invasion of privacy
Fraud · Tortious interference
Alienation of affections
Breach of confidence · Abuse of process
Malicious prosecution · Conspiracy
Defenses to intentional torts
Consent · Necessity
Self defense and defense of others
Fair comment (as to slander/libel)
Other areas of the common law
Contract law · Property law
Wills and trusts
Criminal law · Evidence

In United States 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, or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections.

Alienation of affections was first recognized 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 43 states. Alienation is, however, still recognized in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah.

An action for alienation of affection does not require proof of extramarital sex. An alienation claim is difficult to establish because it is comprised of 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.