Torts. A seldom used tort which provides that a person could be held liable to a husband or a wife if he or she caused that spouse’s partner to lose affection for the spouse. This tort has been abolished in majority of the states in the United States. See, e.g., Helsel v. Noellsch, 107 S.W.3d 231 (Mo. 2003) (“Because alienation of affection is premised upon antiquated concepts, faulty assumptions, and is inconsistent with precedent, the tort is abolished in Missouri.”).
As of 2019, the tort of alienation of affection was recognized in only the following 6 states: North Carolina, Hawaii, Mississippi, New Mexico, South Dakota and Utah. See Hunt v. Chang, 594 P.2d 118, 123-24 (Haw. 1979) (adopting standards governing alienation of affections claims); Fitch v. Valentine, 959 So.2d 1012, 1020 (Miss. 2007) (declining to abolish the common law alienation of affections cause of action); Padwa v. Hadley, 981 P.2d 1234, 1240 (N.M. Ct. App. 1999) (indicating that the common law alienation of affections cause of action exists, but is heavily disfavored); Hayes v. Waltz, 246 N.C. App. 438, 443, 784 S.E.2d 607, 613 (2016) (reciting the elements of an alienation of affections claim); Richardson v. Richardson, 906 N.W.2d 369, 380 (S.D. 2017) (noting that “the South Dakota Legislature has not abolished the tort of alienation of affections.”); Heiner v. Simpson, 23 P.3d 1041, 1043 (Utah 2001) (recognizing the continued validity of the alienation of affections cause of action).
ELEMENTS
To establish a cause of action for alienation of affections, the plaintiff must present evidence demonstrating
- A marriage with genuine love and affection;
- The alienation and destruction of the marriage’s love and affection; and
- A showing that defendant’s wrongful and malicious acts brought about the alienation of such love and affection.
Heller v. Somdahl, 206 N.C.App. 313, 315, 696 S.E.2d 857, 860 (2010); see also Schroeder v. Winyard, 375 Ill.App.3d 358, 364 (2007) (“To prove a claim for alienation of affections, the plaintiff must show: (1) love and affection of the alienated spouse for the plaintiff; (2) actual damages; and (3) overt acts, conduct, or enticement by the defendant causing those affections to depart.”
Element No. 1 – Genuine Love and Affection
An alienation of affections claim requires plaintiff to prove that a happy marriage with genuine love and affection existed between plaintiff and his spouse. The marriage need not be a perfect one, but plaintiff’s spouse must have had some genuine love and affection for him” before the marriage’s disruption. Absent such a showing, an alienation of affections claim will fail.
Element No. 2 – Alienation of Love and Affection
An alienation of affections claim also requires that some of the marriage’s love and affection be alienated and destroyed. The alienation and destruction element is proved by showing interference with one spouse’s mental attitude toward the other, and the conjugal kindness of the marital relation. The loss can be full or partial and can be accomplished through one act or a series of acts. Even if a plaintiff’s spouse retains feelings and affections for a plaintiff, an alienation of affections claim can succeed.
Element No. 3 – Wrongful and Malicious Causation by Defendant
Finally, an alienation of affections claim must establish that defendant’s wrongful and malicious actions caused the alienation of plaintiff’s spouse. There must be active participation, initiative or encouragement on the part of the defendant in causing one spouse’s loss of the other spouse’s affections for liability to arise. Some cases have required that the defendant’s actions be performed with the intent to cause alienation, but more recent cases have required only that the defendant acted intentionally in a way that will probably affect plaintiff’s marital relationship. Defendant’s actions must be a proximate cause of the spouse’s alienation. Proximate cause does not require that defendant’s actions be the sole cause of alienation; rather, defendant’s actions must be only a controlling or effective cause.
In conjunction with the third element, courts have required a showing of willful intent. It is necessary to prove that defendant is blamable and had willful and wrongful intent before civil liability may be imposed. Or, as courts have more colorfully stated: “We must determine whether the spouse’s love and affections for the plaintiff just drifted away, whether the spouse voluntarily floated them away or whether the defendant pirated them away. The liability of the defendant must rest on the last of the three alternatives.” Orbeta v. Gomez, 315 Ill.App.3d 687, 691 (2000)