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?