Alienation of Affection is No Joke

A woman by the name of Anne Lundquist has been in the news for losing an "alienation of affection" lawsuit filed by the wife of one Allan Shackelford. A Los Angeles Times editorial on the topic starts with...

If you're going to have an affair, don't do it in North Carolina. For that matter, don't mess around in Hawaii, Illinois, Mississippi, New Mexico, South Dakota or Utah either. These states have laws on their books that date back to the time when wives were considered property -- and woe unto he or she who steals chattel so dear.

The laws now apply regardless of sex. However, there is a difference between men and women.

A wife's adulterous behavior can result in paternity fraud. It is nearly impossible for a husband to perpetuate maternity fraud, though paternity fraud is not rare, and a husband can be obligated to support the resulting child even if the fraud is discovered, divorce or not.

Meanwhile, a husband's adulterous behavior can now obligate his wife to pay child support to a resulting child as long as she is married to him or is paying alimony to him. This wasn't the case way back when.

The jury awarded $9 million to the spurned wife.

Someone takes marriage seriously.

[Much more after the jump.]

"I don't have a lot of money, so where this $9 million comes from is kind of hysterical," Lundquist told reporters after hearing about the judgment -- she hadn't attended the trial, nor was she represented by a lawyer, perhaps because she hadn't taken seriously the pre-Enlightenment notion that the "other woman" could be held financially liable for the breakup of a marriage.

The board is implying that this is something that should have gone away with the so-called Enlightenment. Are they worried?

About 200 alienation of affection suits are filed in [North Carolina] every year, and although the $9-million Shackelford verdict could be the highest award ever in such a case, seven-figure payouts aren't unheard of.

Alienation of affection is a relic of British common law, originally applying only to wives but now covering spouses of either sex, that most states disposed of long ago.

It appears the board wants to make it clear they don't like this.

If a third party causes the breakup of a marriage, he or she can be sued, even if it's not the result of an adulterous affair; a minister, therapist or friend who advises or enables a split could be dragged into court.

Of course. Why should it be limited to engaging in adultery?

Divorce cases tend to be messy enough, but such suits make them even uglier, further rending families and opening the door to court-sanctioned harassment.

The state has an interest in protecting marriage, and if a state licenses a marriage, then isn’t someone who violates that marriage open to action? These suits are initiated by wronged parties, not by a state Attorney General.

Moreover, most people would accept that the true guilty party in an adulterous relationship is the one breaking his or her marriage vows, but this law implies otherwise -- as if the lover of a married person owed something to the spouse.

State-licensed marriages are a public matter. It isn't just the cheating/leaving spouse who has an obligation. A concern the editorial doesn't address, though, is that sexual behavior with another is only one way to break marital vows. While I do not excuse adultery, there are other ways to break vows including abandonment through ongoing sexual refusal, abuse, substance abuse, physical abandonment, etc. If I was on a jury, I would be unlikely to reward a spouse who did these things if their spouse then sought comfort in the arms of another. But yes, in alienation of affection lawsuits, the spouse should be held accountable as well, and this is possible if we assign fault in a divorce, or even allow the alienated spouse to collect from things that aren't community property, like inheritance.

That makes sense to many social conservatives, who hold the sanctity of marriage absolute, but to us it seems hopelessly outdated. Or to put it in Shakespearean terms, which seems appropriate given the provenance of this tort, "These oaths and laws will prove an idle scorn."

Didn't Shakespeare also write something about protesting too much? If marriage matters and is important, then adultery is a serious matter. Shouldn't there be ways for a wronged person to get compensation? Isn't a lawsuit better than violence?

This is one area where I think mandatory pre-nups and/or civil unions or domestic partnerships may have a role to play. I lean strongly against no-fault divorce, and for alienation of affection laws – and for the bride and groom to mutually agree to possible divorce conditions before the marriage. Perhaps state licensed marriages should by default include fault in divorce, but with the ability for a pre-nup to circumvent that; some other kind of arrangement besides marriage could have different defaults. In too much of the country, we have lowered the standards of marriage.