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Alienation of a Spouse's Affections

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Under the common law, there existed a tort for the alienation of a spouse's affections. Although most states have enacted statutes that have abolished the tort, there are approximately nine states that permit such a tort action to be brought against a third party.
An action for alienation of a spouse's affections may be brought against a third party who purposely alienates one spouse's affections from the other spouse. The third party is liable to the other spouse for the harm that he or she caused to the other spouse's legally protected marital interests. A spouse's legally protected marital interests include the affection, society, and companionship of the other spouse, exclusive sexual relations with the other spouse, and the services and support of the other spouse.
Under early common law, only a husband could bring an action for alienation of his wife's affections. A wife was not able to bring the action because she was not able to file a lawsuit in her own name and because her husband was entitled to the proceeds of any action that was brought on her behalf. After married women's statutes were enacted, a married woman was entitled to maintain lawsuits in her own name and thus was able to bring an action for alienation of her husband's affections.

Requirements for Tort

An action for alienation of affections requires a direct interference with the marital relationship. One act of sexual intercourse may be sufficient for the bringing of the action. A spouse is not required to prove that the act or acts of a third party caused the spouse to incur a financial loss. A spouse is only required to prove loss of affections. A loss of affections may be proven by the other spouse's refusal to cohabitate with the spouse, by a separation, or by a divorce. The fact that the two spouses were separated or were unhappily married at the time of the third party's act or acts does not preclude a spouse from recovering damages from the third party. As long as there was some affection between the spouses, the spouse is entitled to an action against the third party for alienation of affections.
In order for a third party to be liable to a spouse for alienation of affections, the third party must have engaged in some type of affirmative conduct. Inaction on the part of the third party is insufficient for the action. The act or acts must have been committed with an intent to induce or to achieve the alienation of affections. The fact that the third party became the object of the other spouse's affections is not enough. The third party must have actively participated in or encouraged the alienation of affections.
In order for a third party to be liable to a spouse for alienation of affections, the spouses must be legally married. A common law marriage is sufficient if the common law marriage is valid. A marriage that is voidable as result of the spouses' incapacity is sufficient as long as the marriage has not been annulled. If the spouses subsequently divorce, the action may be maintained as long as the spouses were legally married at the time of the alienation of affections.
In an action for alienation of affections, a spouse is entitled to recover damages from a third party for the loss of affections and for emotional distress. The amount of damages will depend upon the nature of the marital relationship at the time of the third party's act or acts. The damages may be reduced if the spouses had an unhappy relationship prior to the third party's act or acts.