Can I Sue the “Other Woman” or “Other Man”?

CNN published its contribution last month to the continuing mythology surrounding the tort called “alienation of affection,” filing a lawsuit against that interloper who seduced your spouse and ruined your marriage.

Coverage like this is typical of journalism in America today, full as it is of breathless and sensational warnings of events that are extremely unlikely to occur. As a divorce lawyer, I hear more than my share of plaintive requests from wronged spouses who want me to tell them that yes, they can sue that vixen who seduced their poor husband, or yes, they can sue that villainous co-worker who led their wife astray.

The CNN story itself points out that the tort is recognized in only six states, Hawaii, Illinois, Mississippi, North Carolina, South Dakota, and Utah. When I look up the population of those six states in the Census Bureau 2010 Data Book, I see we’re talking about a whooping 10.5% of the US population. Whoop-de-doo.

In Alabama and 43 other states plus the District of Columbia, you can’t do it. You have no right of action against the person who seduced your spouse. You can spend your money on lawyers and write threatening letters and post ads on billboards, but it won’t make a bit of difference other than to use up the money you need for other things and leave a trail of bitter words that may haunt you later.

For those who need legal authority, take a look at Ala. Code § 6-5-331, stating that “there shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.” If you’re wondering whether the statute leaves open the possibility of a claim against a woman who seduced a man, the Alabama Supreme Court looked at this issue in Young v. Young, 184 So. 187 (Ala. 1938) and said no, the statute abolishes all civil claims for alienation of affections of husband or wife.

The Alabama courts have also read the statute expansively. In Bailey v. Faulkner, 940 So. 2d 247 (Ala. 2006) rehearing denied, Case No. 1040880 (April 21, 2006), the Alabama Supreme Court reversed a judgment entered on a jury verdict against a pastor who had begun a sexual relationship with a parishioner and employee of the church.

The facts were particularly outrageous. The pastor had persuaded the woman and her husband to stop seeing an independent marriage counselor and to use the pastor instead, and then the pastor began having sex with the wife less than a month later. Then when the husband had the chance to get a big raise by taking a job in another county, the pastor persuaded him to stay put, allegedly so he could continue having sex with the poor cuckold’s wife. Nevertheless, the Alabama Supreme Court stepped in to protect the pastor, saying that the language in the husband’s complaint alleging breach of contract and negligence were a meaningless sham and ineffective at hiding the true nature of the complaint, that of alienation of affections.

In short, this case is not about negligence or wantonness — it is about intentional conduct. The only claims stated by the allegations in this case assert the amatory torts abolished by § 6-5-331. Damages sought here are the species of damages recoverable for those torts. . . . One cannot sue to recover for injuries arising … from an interference with the marriage by simply casting the defendant’s conduct as a breach of contract, or negligence, or some other intentional tort. It is that kind of sham that the case law prevents (citations omitted). Bailey at 253.

If your spouse has been unfaithful to you, you have every right to feel outraged, betrayed, and rejected. You should be angry, and you should go slightly insane. That’s sort of your job. Your anger, however, should be directed at the person who swore to be faithful to you, not the one with whom they dallied.