Earlier this week, Tareq Salahi’s $50 million alienation of affection(s) lawsuit against his wife’s alleged paramour was thrown out of Virginia state court. With good reason; the state abolished tort claims for alienation of affections (sometimes referred to as “alienation of affection,” dropping the “s”) a few decades ago.
For a more or less moribund tort, at least in most jurisdictions, alienation of affections certainly attracts a lot of attention. I haven’t scanned the web for commentary about the Salahi case, but it seems that anytime there’s a big alienation of affections verdict–almost invariably in North Carolina, these days–it leads to a spurt of blog posts and news articles that all share the general theme, “Gee, isn’t it interesting that this tort still exists?” It appears that today, many decades after alienation of affections suits first produced breathless commentary in the media (some examples this genre can be found here and here), the sex + money + courts = publicity equation still holds true.
The alienation of affections tort’s relative accessibility to a broad audience, and intrinsic interest to those of us who study tort law, draw academics to the subject, as well. Being somewhat interesting, such that you’re not 100 percent guaranteed to bore the person you’re talking to at a cocktail party when you bring up the subject, it’s sort of the tort professor’s equivalent to the hey-is-that-a-quarter-behind-your-ear parlor trick. Since 2009, the Volokh Conspiracy site has featured at least seven posts discussing the tort (here, here, here, here, here, here, and here); there have been two such posts on Concurring Opinions (here and here), and the TortsProf blog reliably offers updates on recent verdicts and other observations regarding the cause of action (one of which, a Valentine’s Day post last year, was written by me).
Alienation of affections (as well as its companion “heartbalm” torts of criminal conversation, seduction, and breach of promise to marry) also have produced a steady stream of law-review articles over the past few decades, with some professors defending the torts and others praising their demise. Again, it’s not hard to understand our fascination with these causes of action; not only are the heartbalm torts intrinsically a little more interesting than, say, bad-faith refusal to settle claims, but they (and modern campaigns to abolish them) also raise interesting questions regarding the purposes and limits of tort law. Why shouldn’t someone recover in tort against the person who lured their spouse away? Why should the sordid pedigree of the heartbalm torts affect their modern application? What does it matter that there’s no especially useful guide for damages in these cases? How does one conceptualize the injury in these matters? Is it the place of courts, or legislatures, or both to abolish these torts? You get the idea.
As background, a plaintiff levels an alienation of affections claim against someone who interfered with their marriage, disrupting their relationship with their spouse and leading to a loss of affection. The tort has been abolished by statute or judicial decision in more than 40 states and the District of Columbia; if I recall correctly, it remains at least nominally viable in North Carolina, Mississippi, South Dakota, Utah, New Mexico, Hawaii, Alaska, and Illinois, though in Illinois only actual damages are permitted, which more or less means that an alienation of affections plaintiff will receive squat, and frankly, no one knows for sure if the tort is recognized in Alaska, since there’s never been a reported alienation of affections case in that state.
Historically, alienation of affections suits were brought against two classes of defendants: the paramour of the plaintiff’s spouse, and meddling in-laws (cue Ernie K. Doe, with the advisement that I happen to like my mother-in-law). Today, the latter class of cases has pretty much disappeared, leaving only claims against alleged casanovas and vamps. (If you’re wondering what a “vamp” is, here you go. When watching the clip, assume that Tennessee Ernie Ford is married, and the vamping went a little further than merely hair mussing.)
Back when I did a little research on the heartbalm torts, I found it interesting that there were two waves of abolitionist fervor against these claims. The first peaked in the 1930s and early 1940s; it was a short-lived but potent wave (with a charismatic leader, Indiana legislator Roberta West Nicholson) that swept across a number of states, as far-flung as New York, Alabama, and California, but then disappeared as quickly as it had arisen. The central theme pressed back then, principally in state legislatures, was that the heartbalm torts represented tools in the hands of extortionists and thus amounted to a “racket.” This and similar arguments succeeded in wiping the heartbalm torts out in several states, but the causes of action hung on elsewhere.
As time passed, fewer and fewer of these suits were brought in the states where they remained viable, such that by the 1970s and 1980s they were ripe for removal by courts (who had moved quite cautiously on this front, up until that time), as well as legislatures. By then, the torts were seen as an anachronism, with plaintiffs’ failure to invoke them with any frequency providing substantial proof that they no longer vindicated any important interest. (Of course, the enormous jury verdicts that these cases sometimes produce today arguably suggests otherwise.)
Today, alienation of affections has been abolished in more states than any other heartbalm tort. This marginalization of alienation of affections, in particular, probably owes to the fact that among the heartbalm torts, alienation of affections has been alleged the most often, which has provided courts across the country with numerous opportunities to revisit it.
The most curious thing about alienation of affections, to me at least, is its remarkable persistence–even resurgence–within the state of North Carolina (as Eugene Volokh has documented). Among the states where the tort remains nominally viable, I get the impression that there are very few alienation of affections suits in Hawaii, New Mexico, and Alaska, largely because there hasn’t been a clear judicial blessing of these claims for some time (or ever) in these states, and it’s unclear how a modern court would rule if asked to abolish the tort. Given this uncertainty, prospective plaintiffs’ attorneys probably wonder, Why bother?–that is, if the tort comes to mind at all. Meanwhile, there have been some recent alienation of affections cases in Mississippi, Utah and South Dakota, but nowhere near the volume of these matters that have appeared in North Carolina state courts.
The popularity of the tort in North Carolina suggests, at least to me, the importance of inertia and claim consciousness in tort law. I don’t know how many alienation of affections suits were being brought in North Carolina in, say, the 1970s. My guess, after a quick Westlaw search which yielded only a handful of reported cases, is some, but not a lot. Also, I’ve listened to audio recordings of the Tennessee legislature back when it abolished the alienation of affections tort in 1989. There, legislators joked about how rare the tort was, with one saying that he’d been in practice for more than two decades, without seeing a single alienation of affections claim. My supposition is that many circa-1989 North Carolina attorneys, and spouses, were similarly situated to this Tennessee legislator. If one’s spouse cheated, the inclination was simply to patch things up or get a divorce, not to sue the interloper.
At some point in the late 1990s or early 2000s, things seem to have changed within North Carolina. There were some well-publicized alienation of affections cases during this span; possibly these matters piqued attorneys’, and spouses’, interest. Perhaps there were some other news stories or professional events that I don’t know about, which advised North Carolinians of the continued vitality of the tort. In any event, sometime during this span alienation of affections moved from the periphery of tort practice within the state, and more toward its center.
Put another way, an alienation of affections claim is now “in the mix” when a North Carolina marriage breaks up due to infidelity. Today’s jilted spouses may well appreciate that they have a cause of action in tort, in addition to grounds for divorce. Lawyers in North Carolina know about the tort, as well, and appreciate the possibility of a substantial recovery (and, possibly, for gaining leverage in divorce proceedings by filing an alienation of affections claim against the other spouse’s new companion). The net result is more and more of these suits, unless and until the legislature or courts decides to abolish them.