Image by Jovo Jovanovic via Stocksy

In These States, You Can Sue the Person Your Spouse Cheated With

In 2011, a North Carolina judge ordered a woman to pay $30 million to her husband's ex-wife because the more recent relationship began with infidelity. Despite criticism, a few states still allow for such "alienation of affection" lawsuits.

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Dec 26 2018, 5:31pm

Image by Jovo Jovanovic via Stocksy

During his father’s funeral in 2007, Donald Puryear became reacquainted with a woman he’d once promised to marry. That July day, amidst mourning family and friends, Betty Devin slipped Puryear—who’d been with his wife Carol for more than a decade—her phone number.

Within a month of the funeral, Puryear and Devin began seeing each other, Carol Puryear said in court documents, and her marriage was over. The couple separated in November 2007 and divorced in January 2009. Just days before her divorce was finalized, Carol Puryear filed an alienation of affection civil lawsuit against Devin. In North Carolina, where they both lived, a deserted spouse can sue a third party for essentially breaking up their marriage.

It wasn’t surprising to many who practice law in North Carolina that Carol Puryear won her lawsuit in 2011. All she had to do was prove that she and Donald were legally married, that they genuinely loved each other, and that the defendant, Devin, enticed her husband away from her, causing an alienation of Donald’s affection toward his wife.

What was surprising, however, was the $30 million in monetary damages awarded to the plaintiff. It is believed to be one of the largest rewards handed down in the state.

“For my client, it was not about the money,” Stephanie Jenkins, Carol Puryear’s lawyer, told the News & Observer at the time. “It was about sending a message that people should be held accountable for their actions.”

Seven years after this historic judgment, that message remains codified in state statute. If you live in North Carolina, and a handful of other states, you can actually hold someone other than your spouse legally responsible for your marriage ending.

Alienation of affection is a type of tort claim, which basically means that a private individual can sue another private individual for doing some kind of wrong to them. For alienation of affection claims specifically, a plaintiff who believes their spouse left them because of the actions of a third party, usually an extramarital lover, can file a lawsuit against that third party.

Robin Lalley is a family law attorney with the firm Sodoma Law who practices in North and South Carolina. Having represented clients on both sides, she says alienation of affection cases are not difficult to win. The most difficult part tends to be proving someone else’s actions played a role in the breakup. That may be more circumstantial, she says, though it does help if the deserted spouse has evidence of the affair, such as texts or photos captured by a private investigator.

“Things like that make it all the more clear to a jury or to a judge that there was some kind of act that would have alienated the affection of your spouse from you,” Lalley says. Also, she adds, “it’s not a necessary element that you prove that your spouse and the third party had sex … Technically, it could be an emotional affair.”

According to local media reporting, about 200 alienation of affection claims are filed every year in North Carolina, though most are settled out of court. When potential clients approach Lalley about filing such a lawsuit, she says she usually asks what they hope to get out of it. “If you want money, then [the third party] has to have money to go after. The average person doesn’t have thousands or millions of dollars just lying around,” she says. “If you’re doing it just on principle, that’s a pretty expensive cause of action to pursue,” considering court costs and attorney fees.

Earlier this year, Keith King, the founder of a BMX entertainment company near Greenville, captured national media attention after he was awarded $8.8 million by a judge after he sued the man who’d been seeing his wife for more than a year. He told WRAL that he realized he’d probably never see that money, but winning his case was more important.

"I would be married right now, and we would keep growing our family, and that got destroyed," King said. "There's not a doubt in my mind, and I've always said, 'If it wasn't for him. If it wasn't for him.'"

Alienation of affection, which is still recognized in Hawaii, Mississippi, New Mexico, South Dakota and Utah, has roots in English common law. Interestingly, England actually abolished it in 1857. (The government also did away with a similar cause of action that’s often filed alongside alienation of affection called criminal conversation, which gives married people the opportunity to sue on the grounds of adultery. Not surprisingly, this tort is also still a claim of action in North Carolina.)

Going back to the 18th and 19th centuries, the original intent behind alienation of affection was to protect a husband’s property rights, says Suzanne Reynolds, a law professor and dean at Wake Forest University School of Law. “The law recognized that the wife was the property of the husband,” she tells Broadly. “Distasteful as that is, that was the historical reason for the action.”

Back then, the most common scenario had to do with a husband suing his wife’s parents for convincing her to leave him. That changed in the 20th century when states had to recognize that women were also entitled to legal rights. Instead of abolishing alienation of affection and criminal conversation altogether, as England had done, states revised the torts to make the cause of action gender-neutral. As a result, Reynolds says, the focus shifted away from protecting property rights to protecting the institution of marriage.

“Most people who study whether the law of tort actually has a deterrent effect conclude that a tort rarely has a deterrent effect,” she adds. “I don’t think anybody can seriously claim that people inclined to have a relationship with a married person stop to think, ‘Huh, does this state have a cause of action for alienation of affection?’ And then pursue the relationship or decide not to pursue the relationship based on what the state’s law on alienation of affection is. Even to state that sounds ludicrous.”

But that’s one of the arguments those in favor of the tort make.

In 2010, after a jury awarded a Raleigh woman $9 million when it agreed the defendant in her case had intentionally broken up her 33-year marriage, local attorney Charles Ullman put out a statement lauding the decision. “In an age when ‘the sanctity of marriage’ is a political phrase, alienation of affection laws continue to protect the value of marriage. These cases tell those who would seek to damage another’s marriage that this is simply unacceptable.”

Last year, the North Carolina Family Policy Council, a nonprofit dedicated to “traditional family values,” reissued a brief explaining why it thinks alienation of affection and criminal conversation torts should be preserved. Addressing one criticism that these torts are particularly harmful for the children of a separated couple, the authors write: “Nothing could be farther from the truth.”

“At the point when these actions are brought,” they argue, “most marriages have been destroyed and significant damage to the children already has been done. Instead of experiencing additional harm, children can learn a valuable life lesson in seeing how to respond in a fair, legal and ethical manner to someone who has harmed them.”

Lalley says there are pros and cons to alienation of affection, but to her, the “most legitimate argument” in favor of the tort has to do with financial losses incurred during a divorce. “In North Carolina, we are a no-fault property state, which means that even if your spouse cheats, you still divide up your property equally,” she explains. “To me, the best argument in favor of alienation of affection is saying, ‘If this third party is a controlling cause of the breakdown of my marriage, then I should be able to go after them to recover what I’ve lost.’”

For years, critics of alienation of affection and criminal conversation have worked unsuccessfully to eliminate these causes of action in North Carolina, which many consider outdated. Beyond originating from common law that treated women as akin to farm animals, these torts police morality and regulate personal relationships. And, as the authors of a 2012 paper published in the Elon Law Review point out, there’s also “serious potential for abuse, fraud, and intimidation,” especially since the torts could be used to gain money from a plaintiff’s ex who doesn’t want to see their paramour held responsible for their affair.

In 2009, state lawmakers did pass some small improvements to the law—including installing a three-year statute of limitations and restricting that such claims can only be filed based on actions that occurred before the couple formally separated. But otherwise, Reynolds says, there’s “no legislative appetite” in the state for repealing this tort.

The handful of times the issue has been considered by higher courts, they’ve always found alienation of affection and criminal conversation to be constitutional. In a 2017 decision, the North Carolina Court of Appeals wrote that it was “a substantial governmental interest” to “protect a married couple’s vow of fidelity.”

Recognizing how antiquated these torts are, most states have abolished alienation of affection and criminal conversation altogether. Reynolds says they’re destructive in the states that still have them: “There’s just no chance that a family can have any kind of healthy interaction after one of these lawsuits.”

Nicole Russell of Holly Springs, North Carolina was a defendant in a 2012 alienation of affections lawsuit and ordered to pay the plaintiff $1.5 million. She eventually had to file for bankruptcy because she was unable to pay the damages.

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“I can never open a credit card account. I can never buy a home. I can never buy a car. I'm basically am teenager all over again,” she told WRAL in 2014. “I understood her feelings, I understood. But, to go to such an extreme of destroying someone … It's almost a sick game.”

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