What's "Alienation of Affection?"

In most states, when a woman discovers her husband has been unfaithful, her only legal solution is to file for divorce. But, in a few states, there's another option.

North Carolina
Cynthia Shackelford and her husband were married for 33 years. At some point in time, her husband Alan began seeing another woman, Anne Lundquist.

When Mrs. Shackelford found out about the relationship, her first response wasn't to file for divorce. In fact, it's not clear if she ever wanted a divorce. Instead, she filed a lawsuit against Lundquist under a North Carolina law known as "alienation of affection." And she won, big. A judge in a North Carolina court ordered Lundquist to pay Mrs. Shackelford $9 million in damages.

Alienation of Affection
Alienation of affection is where one spouse sues the other spouse's partner for taking the other spouse's love and affection away from the innocent spouse. In other words, the "other man" or the "other woman" gets sued for breaking-up the marriage.

According to a North Carolina divorce lawyer, North Carolina, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah are the only states still allowing such lawsuits. All other states and the District of Columbia have abolished it, primarily because it's a "revenge" law and does little or nothing to protect marriages.

How does it work? The laws may differ a bit depending on the state, but in general the spouse who's suing has to prove:

The spouses were married and there was love and affection in that marriage
The "cheating" spouse alienated or withheld his love and affection from the suing spouse
The "other man" or "other woman" caused or helped to cause the alienation
The "other man" or "other woman" knew or should have known his or her conduct would cause the alienation
The suing spouse doesn't have to prove the other spouse and the "other man" or "other woman" had a sexual relationship.

If the suing spouse wins, she may be awarded compensatory damages. This is money to pay for the actual loss of the other spouse's affection and companionship, as well as loss of support. Mrs. Shackelford was awarded $5 million in compensatory damages.

The suing spouse may also get punitive damages, which punish the wrongdoer. For these damages, the suing spouse has to prove the "other man" or "other woman" acted willfully and maliciously. Mrs. Shackelford got $4 million in punitive damages, presumably because she proved her claims that Lundquist actively and deliberately set-out to seduce Mr. Shackelford, knowing he was married.

Criminal Conversion
Criminal conversion is similar to alienation of affections, and it too is still alive only in North Carolina, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah. Again, the innocent spouse sues the other spouse's partner. Despite its name, it's not a "criminal" action. It's a civil action, just like alienation of affection or the run-of-the-mill personal injury lawsuit.

To win in this type of case, the suing spouse needs to prove:

The spouses were married
The other spouse had a sexual relationship with "other man" or "other woman"
Essentially, in this type of suit, the suing spouse claims the "other man" or "other woman" stole sexual relations that rightfully belonged to the suing spouse.

A spouse may sue for alienation of affection and criminal conversion at same time. It appears, however, Mrs. Shackelford chose not to sue Lundquist for conversion.

Your Options
Unless you live in one of the handful of states, your options are limited when it comes to dealing with an unfaithful spouse. You can either try to work things out and save the marriage, or you can get:

Legally separated. This is an option in most states. It allows you and your spouse to stay married, but you'll live separately and a court will decide matters such as child custody and support, alimony, and property division. Later, you can reconcile and resume living together if you wish
Divorced. This is the legal termination of the marriage, and a court will decide child custody and support, alimony, and property division
In states like North Carolina, you may have options, and your bank account may get fat, but the odds are the outcome will be the same: The end of your marriage.

Questions for Your Attorney
What can I do if I win my affection of alienation lawsuit but the other person claims he can't pay the damages?
Can I sue my husband's mistress even if we've been divorced for five years now?
My wife "loaned" her boyfriend several thousands of dollars from our bank accounts. Is there any way I can sue him for the return of that money?
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