Stealing Love

Love is a wonderful thing, but sometimes love (or infatuation) leads individuals to engage in behavior that can hurt not only them, but also their families. I am talking about extramarital affairs. Although over 85% of Americans believe that adultery is morally wrong, countless spouses are unfaithful. Last week the NY Times discussed the benefits of an anti-love vaccine which would prevent humans from falling in love with the wrong person (i.e., someone who is committed to another person). While such a drug would do wonders for those who wish to fight the occasional urge to stray, it does little to deter individuals who have no qualms about pursuing someone else’s spouse. The law, however, might already provide a deterrent, albeit a quite controversial one.

A minority of states, including Mississippi, North Carolina, South Dakota, and Utah, still recognize a cause of action for alienation of affections against any person who wrongfully interferes with a person’s marriage, thereby causing that person to lose his or her spouse’s affection. Lest you think these causes of action are a thing of the past, this past August, the Mississippi Supreme Court upheld a $1.5 million verdict against an attorney who had an affair with his client’s wife. The plaintiff, who had hired the attorney in connection with a medical malpractice case, prevailed on his claims for intentional infliction of emotional distress, breach of contract, and alienation of affections. Further, even after abolishing the tort of alienation of affections, some states, including California, Connecticut, Kentucky, Maryland, Ohio, Oregon, and Virginia, have allowed claims arising from an extramarital affair to be brought against certain professionals, including attorneys, psychiatrists/psychologists, and clergymen providing marital counseling services, on a theory of intentional infliction of emotional distress, professional malpractice, negligent counseling, and breach of fiduciary duty. For example, eight years after abolishing the tort of alienation of affections, the Kentucky Supreme Court upheld a claim for intentional infliction of emotional distress against a priest who had an affair with the plaintiff’s wife to whom the priest was supposedly providing marriage counseling.

Admittedly, courts are not flooded with these types of cases. However, when successful, the damages can be significant, especially when punitive damages are awarded. Yet, successful or not, one has to wonder why a significant minority of courts continue to entertain these claims. Does the threat of civil liability actually make a person think twice before starting a relationship with a married person? In many of these cases, the cheating spouse ends up marrying the other man or woman, which suggests that the affair was not merely a casual encounter, but the beginning of a potentially stable relationship. Moreover, despite Dr. Phil’s suggestion that someone can “steal your man” or woman, I am not convinced that affections can be stolen. Recognition of these types of claims ignores the cheating spouse’s free will. I also worry about the effect that civil litigation over a parent’s extramarital affair may have on children who are already struggling to cope with their parents’ divorce. Finally, it is disturbing that the “jilted” spouse can recover damages from the third party who interfered with the marriage, but cannot sue the cheating spouse—the person who breached the marital contract. All he or she can do is divorce the cheater.

On the other hand, do courts that continue to entertain these claims know something I do not? These courts have reasoned that “[w]hen a third person is at fault for the breakdown of a marriage, the law ought to provide a remedy.” Norton v. Macfarlane (Utah 1991). Yet, given the complexity of human relationships, how exactly is a jury supposed to determine who is responsible for the breakdown of a marriage?

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23 Responses

  1. I suspect something other than love (or even infatuation) is behind extramarital affairs: lust, narcissism, insecurity, depression, etc., etc., strike me as more plausible forms of (mixed) motivation, especially when it speaks to the question of what prompts people to do such things in the first instance. Of course this leaves intact the integrity of your contract and tort questions.

  2. Kyle Graham says:

    Actions for alienation of affections are pretty rare these days, though, except perhaps in North Carolina; indeed, they were never all that common. I discuss the rise and fall of alienation of affections and other “heartbalm torts” in Why Torts Die, a piece I put together a short while back:

  3. Kyle Graham says:

    Actions for alienation of affections are pretty rare these days, though, except perhaps in North Carolina; indeed, they were never all that common. I discuss the rise and fall of alienation of affections and other “heartbalm torts” in Why Torts Die, a piece I put together a short while back:

  4. Kyle Graham says:

    Actions for alienation of affections are pretty rare these days, though, except perhaps in North Carolina; indeed, they were never all that common. I discuss the rise and fall of alienation of affections and other “heartbalm torts” in Why Torts Die, a piece I put together a short while back:

  5. A.J. Sutter says:

    The Times article actually mentioned, in passing, “a vaccine preventing you from making an infatuated ass of yourself.” That’s a bit different from a “vaccine” (probably ‘drug’ is a more accurate term) that would prevent you from falling in love with the “wrong” person: even if the latter type of drug were available, it isn’t clear how it would avoid affecting your feelings for the “right” person, too. I’m not sure why you’re so confident that such a drug would do “little to deter individuals who have no qualms about pursuing someone else’s spouse,” assuming such a drug existed: I thought the point of the drug would be to overcome qualmlessness. (BTW not that I’m at all speaking approvingly of the commercialization or use of such drugs.) Maybe you were just looking for a catchy opening to the post, but still, the Times article and your perhaps unwitting transformation of it are interesting as reflecting a general American love of (i) biologizing cultural and other social matters (e.g., late 20th century American mores; see also, e.g., Thaler & Sunstein’s Nudge), and (ii) taking drugs to make behavioral and social issues go away.

    Back in the real world, though, I share your concerns about this type of litigation.

  6. A.W. says:

    First, I don’t find the basic idea of a cause of action so difficult. Yes, it is often hard to assign fault, but that doesn’t mean we let people get away with it when the fault is clear. It just means that we have to make sure the fault is clear before we assign it.

    But this whole post shares an intellectual legacy with the general move away from people being held responsible for the dissolution of a marriage. I understood the theory, but well, look at the reality. Contrary to the original purpose of no-fault divorce, the divorce rates have soared. Clearly this experiment has not worked out.

    Which is not to say that the soaring divorce rate is solely caused by this trend toward considering this sort of thing faultless, but I think there can be very little doubt that the ease of divorce and the lack of opprobrium attached to divorce, encouraged by laws that claim that there is such a thing as “no fault” in divorce (if you can’t blame one spouse or the other, then the answer isn’t that no one is to blame; it is that both are to blame), has contributed to this trend.

    Of course we shouldn’t also see marriage as having some sort of death grip. “Until death do we part” should not be read as “until OJ kills Nicole.” But there can be a middle ground between telling a Nicole Brown she has to stay with OJ, and telling people they can break up their family just because they feel like it like is wont to daily in hollywood. And i would like to see the law go to that middle ground.

    A law like this is useful in that respect. Yeah, you know what, you shouldn’t have sex with another man’s wife or husband, until they stop being that person’s wife or husband. and you shouldn’t set out to seduce a person away from their wives. And if people are not influenced by such laws, well, perhaps a few well-publicized examples will change that.

    And such a law serves another important purpose: it discourages crime. You have to remember that our legal system is meant as an alternative to the private enforcement of your rights. Our legal system, in a very real sense, is an alternate dispute resolution system, that is an alternative, to say, killing someone who had sex with your wife, or engaging in other forms of self-help. By keeping this cause of action on the books, you say to the wronged wife, or the cuckold husband, “Don’t shoot them. Sue them.” The notion we say to a person who has been wronged by another this way, had their lives torn apart, been personally betrayed in a way that makes them doubt their own worth as a person, that they have no remedy at law, is to invite unlawful behavior. I have thankfully never experienced that kind of hurt but i have seen it happen to another and, yes, the guy in question never went violent and never sued. But it was a real outrage, and it really hurt him, in a way worse than many of the acts we do compensate for. And in a less decent man, violence would have ensued, as indeed our criminal law usually acknowledges.

  7. BobN says:

    I thought the punishment for alienation of affections was an appearance on the Jerry Springer Show…

  8. A.W. says:


    Are you kidding? I think often it is a catalyst… You can almost picture the conversation:

    “Come on, please, honey, if you cheat on me with a transgendered lesbian, then we can be on television!”

    Besides Springer is “pro-wrestling.” In other words, fake. If all those fights on the show were real, the police would be on there every night arresting the guests. The fact that no one, to my knowledge, has been arrested for assault after being on that show is proof it is not real. Clearly the cops came by, and they explained it to them, and that is why there are no arrests.

    At least that is my theory.

  9. Dazed & Confused says:

    I am fundamentally confused by this post and the comments. My confusion is quite simple: Why is everyone here so strongly anti-affair? Why, indeed, is there an urge to pathologize extra-marital relationships (i.e., saying they spring from narcissims, lust, depression)? It seems to me that lots of people are secretly pro-affair (i.e., the substantial minority (majority?) of people who have had an affair or desired one.) It seems to me, moreover, that this is a subject that we simply can’t talk honestly about: that marriage gets stale sometimes,and that the desire for another partner is strong and maybe even thrilling. I’d love for a politician, when caught in compromising circumstances, not to bow in shame along side of his wife, but to say, “Yeah, I had an affair — and it was the best sex of my life.” Aren’t some among us looking for that? And if some of us are, why is that categorically a bad thing, rather than something that can be looked at with more nuance — as something that is good or bad depending on many, many circumstances?

  10. A.J. Sutter says:

    Dazed, I agree with you about pathologization; my own attitude about affairs is more laissez faire. I think many on this board don’t have as much experience of marriage, or of divorce, as might make them more compassionate (at a gut level, not just an intellectual one) about the variousness of the human condition. One thing I’ve learned since first marrying more than a quarter century ago is that it’s impossible to judge someone else’s marriage accurately; and understanding one’s own is not always easier.

  11. Dazed & Confused: Indeed.

    Because the majority, overtly or secretly, wants or desires something it does not thereby make it right, healthy, what have you. If a marriage gets stale, you want thrills, etc., get a divorce (assuming you and your partner do not want to forgive the infidelity and/or renew the prior commitment) and live the life you think will bring fulfillment. There’s no need to be deceitful with one’s partner, break one’s vows or commitments, be untrustworthy, etc. By all means do not stay in a marriage if you’re not the sort of person who is able to keep up the commitments the institution asks of the parties. Not all our desires should be realized or expressed; not all our desires are what they appear to be; not all our desires are psychologically healthy or ethically virtuous if given free rein. Some desires should be thwarted, transcendend or sublimated if only because they are in fact tending toward or manifestly pathological. Marriage is not for everyone, and everyone has a choice as to whether or not to commit to this particular institutional practice. If one discovers ex post facto that it’s not something one is able to live in fidelity to, by all means abandon the pretense.

  12. J.G. says:

    If a marriage gets stale, you want thrills, etc., get a divorce

    Patrick – ironically, that zero-tolerance attitude is probably a major reason why the divorce rate is so high today.

    A wise old lady who had been married for a very, very long time once told me “You kids these days are so intolerant of any cheating. If all of my friends who had affairs or were cheated on got divorced, I wouldn’t know any married people.”

  13. J.G.,

    Apparently you missed the parenthetical comment: “assuming you and your partner do not want to forgive the infidelity and/or renew the prior commitment;” I can well imagine that assumption not holding, in fact, I would think it prudent to go that route if possible, that is, exhaust the possibilities in interest of keeping the marriage together before opting for divorce.

  14. dbt says:

    Does this mean that not quite all is fair in love and war?

  15. A.W. says:

    Patrick, Dazed,

    You both have it wrong. Marriage should be seen as a commitment, to make it work. If sex is stale, the answer is to explain to your spouse that sex is stale and figure out how to spice it up.

    And you know what? If the sex is irredeemably stale, then tough. There are people in this world who are physically incapable of performance in bed (or to be precise, severely limited in their options). So a guy with muscular dystrophy should just understand that he shouldn’t bother to marry because every woman he marries would be justified in sleeping around (according to Dazed), or divorcing him (according to Patrick)?

    Neither one of you understand the concept of commitment, or that yes, there are more important things in life than getting a good lay. Sheesh.

    Although in Patrick’s defense, divorce is a better solution than just sleeping around.

  16. A.W. continues to exemplify his stunning constitutional inability at this blog to carefully read and make proper sense of words used to compose sentences in English. I made clear an understanding of marriage as a species of “commitment.” I said nothing whatsoever that would permit one to make the inference that I believe (either descriptively or prescriptively) marriage revolves around sex or rules out the possibility that one or both partners can physically perform sex, etc.

    The legal profession in her state is in deep trouble if it permits someone to practice that can’t properly summarize, characterize, represent…let alone make sense of, the patent views of others.

  17. A.W. says:


    When you say “If a marriage gets stale, you want thrills, etc., get a divorce” what am I supposed to think about your concept of committment?

    It stinks, that’s what.

  18. A.W. says:


    Let me dial my response back by saying this. maybe you just didn’t pick your words carefully enough. But you have to admit that to what you wrote was, perhaps unintentionally, a terrible message.

  19. A.J. Sutter says:

    Patrick, A.W.: A.W.’s “dialing back” of his message is a step in the right direction, but I hope you will both take your ad hominem flaming off-line. This is not the first thread in which it has erupted, and as it spreads it’s making this blog much less pleasant to read.

    As for the substance of the comments, they tend to focus on morality, rather than on the connection between law and morality. One small virtue of true libertarianism is that it tends to extend to the personal sphere as well. A philosophy holding that markets should be free from government interference, but that the most intimate aspects of personal life should not, is far more troubling.

    Moreover, Solangel’s premise to her question about burden of prooof — “given the complexity of human relationships” — embeds in it much more wisdom about the reality of human life than the black-and-white (or, to the extent they are nuanced at all, checkerboard) moralizing analyses in this thread, IMHO.

  20. A.W. says:


    The disintegration of the American family has real-life effects on all of us, not just the ox that is gored. If you interpret libertarianism to ignore this very real problem with very real consquences for our whole society, it is an indictment on libertarianism.

  21. A.J. Sutter says:

    A.W., thanks for your comment. I am satisfied with the many other indictments of libertarianism that I can think of. But as I have far more life experience with some of the issues in this thread than I would wish on most people, I tend to share Solangel’s skepticism about the causes of action, or even to go beyond mere skepticism.

    I also live in a country that lacks “no-fault” divorce (Japan). I see the difficulties another family member is facing because of it, as well as the disintegration of family life here (at least in major cities), despite what some might consider a “family-friendly” legal regime. You’re right that the disintegration of family life is an important issue in the US, and in many other countries, too. But I do not see laws that punish people in unhappy marriages as the proper way to address these societal issues.

  22. A.W. says:

    Well, i can understand your skepticism, but Rudy Guiliani’s success in NYC is a model for how a little thing can go a long, long way.

    And even if it only helps a little, it helps. If we take a stronger view of committment in this country, who knows? maybe a couple that would have divorced merely for being unhappy, can instead figure out how to make the best of things, and who knows? maybe they will be happy. And maybe if they know marriage is not easy to leave, they might be more careful about who they marry in the first place.

  23. Madeline says:

    I think that in understanding human behavior and the stages that humans go to before they decide to change a behavior, we realize that people inherently are going to do what they want to do. If someone wants to cheat, they will cheat. Even if they love their spouse and have a good marriage. Sometimes people dont need a reason or to have a particularly bad marriage or bad sex with a spouse to want to cheat. Sometimes,people just meet someone that for whatever reason triggers that spark in them to feel that they should be with that person. I am not a proponent of cheating or divorce, or even marriage. I simply have seen it from all sides. There are good people who cheat, bad people who cheat and there are people that fix their marriage and go back to their spouse, and people that are happier and better matched with the person they cheated with.

    Although the laws and legal system may deter a few people from cheating, most people if motivated by love, lust, etc to cheat, will simply look for ways to beat the system. For example, the laws are pretty strict on speeding (i.e.- points on your license, arrest, impounding the car)however, most people still take a calculated risk to speed even if a little, over the speed limit. If the benefit outweighs the foreseeable danger and risk, then most people will take the risk. Especially when the risk plays into the fantasy that perhaps the person you want to or are cheating with, is the person for you. And the reality is that sometimes this is true, the person you cheat with is the person for you.

    I think that the idea of utilizing the legal system to intervene in personal relationship matters is acceptable for cases where losses were serious/ severe. For example if the spouse suffered a mental breakdown, an exacerbation of a serious medical condition, the children had mental breakdowns or needed serious mental health treatment then it is understandable to sue, since serious losses were incurred. However in cases where it is ego and feelings that were hurt but the spouse was able to move on with their life relatively well, then lets just chuck it to karma/ GOD to give the cheating spouse what they deserve. Otherwise we end up with the ridiculous law suits seen on People’s Court or Judge Judy where people are being sued for wedding, prom and vacation expenditures due to couples breaking up. As Judge Judy has said several times, these are the breaks when you embark in love relationships. Sometimes they dont work and you “lose”, sometimes they dont work and you “win”. I also think that personal responsibility is a must. Most spouses that have been cheated on were not surprised by the cheating. They suspected the affair for a long time, and chose to stay and endure. If this is the case then the spouse should not be allowed to sue.