Alienation of Affection

When a third party intervenes, destroying the affection that binds two married people, he or she as caused alienation of affection. Historically, the individual harmed by this destruction of the relationship could seek damages through a civil lawsuit. In modern times, this is not common, though the issue may be brought up in divorce proceedings. To explore this concept, consider the following alienation of affection definition.

Definition of Alienation of Affection


  1. The estrangement of one spouse from the other, caused by a third party.


Circa 17th century

What is Alienation of Affection

Affection is a necessary element of any marriage, and it has been felt throughout history that a third party who instigates an intimate relationship with a married person has wronged the other spouse. A great many marital relationships have failed because one spouse had a romantic affair with someone else.

Historically, the wronged spouse – having been left or abandoned by the spouse engaging in the affair – had the right to sue the third party, claiming alienation of affection. While the cheating spouse’s lover was the most commonly the target, other people, such as marriage counselors, and clergy, could possibly have been sued for alienation of affection.

Elements of Alienation of Affection

While most states have abolished – or allowed to fall into disuse – the tort of alienation of affection, the states of Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah still allow suits under this concept. A civil lawsuit based on alienation of affection may be filed by either spouse, and may be made before or after they have separated. There is, however, a statute of limitations on such a claim, which varies by state.

There are several elements of alienation of affection that must be proved in order to be successful in an alienation lawsuit. By their very nature, these elements may be difficult to prove. Elements of alienation of affection that must be proven include:

  1. The marriage was originally based on genuine love and affection
  2. That love and affection was alienated and destroyed
  3. One spouse’s extra-marital lover was the primary cause of the alienation of affection
  4. The alienation damaged the other spouse

The lover-defendant is not required to have intended to destroy the marriage, only to have intentionally acted in a manner that could reasonably and foreseeably impact the marital relationship.

Example of alienation of affection:

Carl had been married to Lisa for eight years when he met Tammy. Tammy and Carl eventually began seeing one another in secret, and engage in the affair for two years before Lisa finds out. In the ensuing fight, the two decide to divorce, and the loss of Carl’s income has a very serious on Lisa, who has been a stay-at-home mom to the couple’s three children.

Lisa didn’t intend to destroy the marriage – thinking that she could keep seeing Carl in secret, and no harm would be done. In this example, alienation of affection could be a successful tort claim. Lisa deliberately engaged in an affair with a married man, which can be reasonably assumed to damage the marital relationship.

Defense to Alienation of Affection

Tammy’s legal claim against Lisa in the above example hangs on the fact that Lisa knew Carl was married, yet engaged in the affair anyway. A person being sued in such a case might successfully bring a defense to alienation of affection by showing that he or she had no idea that the other person was married.

Another possible defense to alienation of affection might be that the defendant was not the initiator or aggressor in initiating the relationship. If the defendant can somehow show that his or her conduct happened by chance, the plaintiff might have a difficult time proving intent.

For example, an alienation of affection claim might limit the defendant’s claim that the couple’s marital relationship had problems. Such a claim would only be successful if the relationship had already reached the point of there being no love and affection between the spouses – before the affair began.

Criminal Conversation

Criminal conversation, as well as alienation of affection, are sometimes referred to as “homewrecker laws.” This is because both are civil torts regarding cheating spouses, and the demise of a marital relationship.

Criminal conversation is not a criminal charge, but a tort in a civil lawsuit, which seeks damages for the spouse’s sexual intercourse – adultery – with a third party, outside the marriage. Historically, each separate act of adultery could be brought to the court as separate claims for criminal conversation.

While criminal conversation is very similar to alienation of affection, there are certain elements that are different from those listed above.

Elements of Criminal Conversation

For each claim of criminal conversation, the plaintiff (wronged spouse) must prove:

  1. that a legally valid marriage existed
  2. that sexual intercourse occurred between the cheating spouse and a third party

A primary difference here is that, in a claim for criminal conversation, the plaintiff must prove that the other spouse actually had sex with the third party. It may be possible for the defendant to defend him/herself by proving that the couple was separated, with the intention to divorce. Another defense that may be accepted is to prove that the plaintiff had consented to the intercourse between the spouse and the third party.

The torts of both alienation of affection and criminal conversation are no longer widely used, though there are a handful of states that still allow such claims to be made.

Alienation of Affection Example in Political Affair

During the 2008 presidential campaign season, Americans were shocked to learn that candidate Senator John Edwards had fathered a child with Rielle Hunter, a campaign videographer. Edwards’ wife, Elizabeth, was dragged into the ugly spotlight, and threatened to file a civil lawsuit for alienation of affection against – not John’s mistress, but against his campaign aid, Andrew Young.

Alienation of affection torts do not require proof of a sexual relationship. In fact, it can be brought against someone other than the spouse’s lover, if that person somehow aided in the alienation. In this case, Elizabeth Edwards claimed that Young knew about the affair, and had helped cover up John’s actions. This contributed to the demise of the Edwards’ marriage.

The theory behind Elizabeth’s potential alienation lawsuit against Young was that he had been complicit in fostering, and covering up, the affair. In fact, his efforts were so dedicated that the affair was hidden so well that Edwards actually fathered a child with his lover, without his wife knowing.

The state of North Carolina, where the lawsuit was to be filed, recognized alienation of affection as a cause of action, allowing the tort to be filed against virtually party or meddler who causes, or lends to, the failure of a marriage. This might be the cheating spouse’s lover, an interfering in-law, a marriage counselor, or any other person whose interference causes alienation between the couple.

Advisors recommended that Elizabeth target – rather than her husband’s campaign aide – her husband’s mistress, who clearly knew he was a married man. In addition, Young claimed that his efforts in covering up the affair was done to protect both Elizabeth and the couple’s marriage, which might have made proving intent difficult. Young certainly didn’t have the same culpability as her husband, who engaged in despicable behavior at a time when his wife was dealing with cancer.

In the end, Elizabeth chose not to file suit for alienation of affection against Andrew Young, though she did leave her husband before she died in 2010.

Example of Alienation of Affection Being Denied

Four years after Juanita Omadlao married David Coulson, she began having an affair with Aaron Steiner. Shortly after learning of the affair, Coulson filed for divorce in their home state of Alaska. His wife was pregnant at the time, and petitioned the court for temporary spousal support, claiming that she could not work because of pregnancy-related disability. Juanita claimed, on her court documents, that Coulson was the father of her child.

After the baby was born, in February 2014, the court granted Juanita’s petition for support, at the rate of $1,000 per month. Coulson was also ordered to pay Juanita’s medical expenses related to the pregnancy and birth, and to buy medical insurance for both Juanita and the baby.

About a month after the baby’s birth, Juanita and Steiner paid for a paternity test for the child, which proved that Steiner was the baby’s biological father. But, they didn’t tell Coulson – or the court – about the test. A few weeks later, Coulson asked the court to order a paternity test, which proved what the couple already knew – that Coulson was not the baby’s father. The court modified the support order, and as soon as Juanita’s and Coulson’s divorce was finalized, she married Steiner.

Coulson filed a civil lawsuit against Steiner for alienation of affection, as well as for conspiracy, fraud, and intentional infliction of emotional distress, for his role in concealing the baby’s true parentage. The trial court granted summary judgment to Steiner, on the basis that claims for alienation of affection were barred in Alaska.

Coulson appealed the decision to the Alaska Supreme Court, which agreed that the alienation claim was properly denied, but ruled that the lower court had erred in dismissing Coulson’s other claims. The other claims of conspiracy, fraud, and intentional infliction of emotional distress concerned Steiner’s actions during the divorce, but did not claim he caused the divorce. The Court ordered that those claims be returned to the trial court, giving Coulson his day in court.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Summary Judgment – A final decision on the case, handed down by the judge on the basis of the statements and evidence presented, without a full trial.
  • Tort – An intentional or negligent act, a civil wrong, as opposed to a criminal act, which causes harm to another.