SHOULD WE RETHINK ALIENATION OF AFFECTION?
July 29, 2010 § 3 Comments
Philip Thomas, the Jackson lawyer who blogs at MS Litigation Review & Commentary has posted some trenchant thoughts about the cause of action for alienation of affection in Circuit Court that is sometimes used either for vengeance or to coerce a settlement in Chancery.
I found his comments so thought-provoking for family law practitioners that I have copied and pasted it below rather than simply providing a link.
I recommend Mr. Thomas’s blog to you as a regular read.
I’m sick of alienation of affection lawsuits. Who’s with me?
I’m sick of this one, which ironically was filed by a former Miss. Supreme Court Justice (McRae) who advocated abolishing the cause of action while he was on the Court. I’m sick of this one, which is just getting started. I’m sick of the one involving my old law firm that recently was the subject of a Supreme Court decision. I’m sick of the entire cause of action.
Here are just a few of the problems that I have with the cause of action:
- fault—in an alienation of affections lawsuit, fault is placed on the third-person involved in the affair instead of the cheating spouse. But it was the cheating spouse who broke a vow.
- causation—who can really say that the “alienation of affection” is what caused the marriage’s demise? Anyone who has ever been married knows that marriages are extremely complicated.
- damages—as pointed out by Justice Dickinson in a concurring opinion in Fitch v. Valentine, there are no standards for compensating the plaintiff.
- quasi-extortion—there is a quasi-extortion element to the cause of action. I’ve heard that many alienation of affection claims settle before suit is filed in order to keep the allegations out of the public record. Once suit is actually filed, the case is likely to go to trial because the plaintiff has shot his/ her biggest bullet. Compare that to the rest of the civil justice system where cases are rarely settled before suit is filed, but most do settle after suit is filed.
- resolution—I do not believe that an alienation of affection case promotes the orderly resolution of the acrimony between the individuals involved. In fact, I think that it does the opposite.
- 42 states do not recognize the cause of action. That fact standing alone does not make the action bad, but it does suggest problems.
- the danger of entrapment—an enterprising couple who are grifters could set up an alienation of affection lawsuit and then share in the proceeds. A new couple moves to town. The wife is seen around town flirting with doctors and other wealthy men. This leads to a notorious affair followed by an alienation of affection lawsuit by the woman’s husband. In the lawsuit, the woman testifies that the affair did alienate her affection from her husband and destroyed their marriage. After a big settlement the couple then moves to North Carolina or another state that recognizes the action and starts the whole scam over. This is not that far-fetched to me. In fact, I would be surprised if there has never been collusion in an alienation of affection lawsuit.
In summary, it’s a bad cause of action that should be abolished