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Stealing Love Away

Most people no longer think of their romantic partners as property. But, in a few states, the law has failed to keep up.

Seven states (Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota and Utah) still allow an abandoned spouse to sue his or her partner’s new flame for “alienation of affections.” In an alienation of affections case, one person in a failed marriage alleges that a third party was responsible for the marriage’s collapse. The plaintiff must prove that there was some degree of affection sustaining the marriage at the time of the defendant’s interference and that the defendant’s malicious conduct brought an end to that affection.

The defendant is almost always a lover or mistress. An alienation of affections suit basically treats the break-up of a marriage due to an extramarital affair as the equivalent of cattle rustling. The devious home-wrecker used his or her wiles to lure away an obedient spouse, who otherwise would have been perfectly happy to stay. Never mind the fact that plenty of marriages end in divorce without any extramarital interference.

At most weddings, the bride and groom promise one another that they will be faithful, but the rest of the wedding guests do not stand up to add their own promises to protect the couple’s fidelity. Alienation of affections cases resemble some commercial lawsuits in which one party is accused of inducing another party to break a contract. In business, contractual rights are seen as valuable property, so someone who interferes with those rights may owe damages to the injured party. Alienation of affections statutes treat the loyalty of one spouse to another in much the same way.

Even when an alienation of affections claim is not made, public opinion sometimes applies the same logic. John Edwards’ former mistress Rielle Hunter has been forced to defend herself against claims that she ruined the politician’s marriage and caused harm to his wife, Elizabeth Edwards. The challenge has been brought in the tabloids, rather than the courts, but its elements are nearly identical to those of an alienation of affections case. In her defense, Hunter claims that the Edwards’ marriage was already in shambles and that her actions did little to precipitate its further decline. “I do not believe I wrecked his home,” she said on the Oprah Winfrey Show.

One high-profile estranged wife is suing her husband’s mistress, though the claim is not alienation of affections. Siohvaughn Wade, the wife of Miami Heat star Dwyane Wade, contends that his girlfriend, Gabrielle Union, has caused the Wade children emotional distress as a result of her “sexually explicit” behavior in their presence. Siohvaughn Wade also claims that she, too, has suffered emotional distress as a result of Union’s conduct. The suit was filed in Illinois, which is not one of the states that recognizes alienation of affections. However, Siohvaughn Wade’s case seems to reston her hope that Union will be seen as a seductress who stole Dwyane Wade from his rightful wife.

Far from being forgotten, alienation of affections claims are still used fairly frequently in states where they are permitted. North Carolina, in particular, continues to grant sizable awards to abandoned spouses.

Most of the country has moved forward. A jilted spouse may have legitimate claims against the one doing the jilting, but most of us today view love as something that can be freely given and, for better or worse, just as freely withdrawn. It is not something that can be taken from someone unwilling to relinquish it, or demanded from someone who does not want to give it. Allowing an outmoded concept to remain in the law simply provides one more legal club with which soon-to-be-ex spouses can bludgeon one another, to the ultimate benefit of nobody.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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