After a NC man won $8.8 million in a lawsuit last month for alienation of affection against his ex-wife's lover, many people are asking, "Can I sue for alienation of affection in SC?"
The answer is no - South Carolina's Supreme Court abolished the civil claim in 1992, although seven states still permit lawsuits for alienation of affection.
Why was it abolished? Which states still allow it and why?
What is Alienation of Affection?
Alienation of affection is a civil claim that is filed separately from a divorce action. They are often referred to as "homewrecker" or "heartbalm" lawsuits, filed to seek compensation from a third party who has "lured away" a spouse.
The defendant in a lawsuit for alienation of affection is typically a third party with whom your spouse cheated, but it can be filed against any person who interferes with your marriage and deprives you of "the affections" of your spouse, including:
- Work associates;
- Clergy; or
To succeed in an alienation of affection claim, you would need to prove:
- That you and your spouse had a healthy, happy marriage (one that had "affection");
- That your marriage was harmed, and you were deprived of your spouse's "affections;"
- That a third party wrongfully caused the alienation; and
- You were damaged by the alienation.
What is Criminal Conversation?
"Criminal conversation" is like a companion tort to alienation of affection that compensates you when a third party has sex with your spouse - it's a civil cause of action for adultery.
Which States Still Allow Alienation of Affection Lawsuits?
Most states have abolished lawsuits for alienation of affection and criminal conversation. The seven states that still allow it are:
- New Mexico;
- North Carolina;
- South Dakota; and
Here's a tip - if you are going to cheat with a married man or woman, don't do it in those states...
Alienation of Affection in North Carolina
One of these states, North Carolina, keeps making the news with large verdicts in alienation of affection cases. For example:
- Last month's $8.8 million verdict in a lawsuit filed by the husband;
- A $30 million verdict for a wife against a husband's mistress in 2011; and
- A $9 million verdict in 2010, also filed by a wife.
In last month's case, the evidence presented by the husband included:
- The couple had been married since 2010 and had a five-year-old child;
- He discovered the affair when he found an unknown number on his phone bill;
- He told the other guy (H) to back off, but H did not;
- H then rented an apartment near the family's home;
- H showed up at the couple's "spa weekend" and a family vacation;
- The wife rented an apartment in H's name; and
- H assaulted the husband when he showed up at the apartment.
The husband owned a BMX company and claimed that the affair and the assault by H caused his company's revenue to fall dramatically and that he was forced to spend additional money on household expenses - the verdict included $2.2 million in actual damages and an additional $6.6 million in punitive damages...
Alienation of Affection Lawsuits in South Carolina
The South Carolina Supreme Court abolished alienation of affection in Russo v. Sutton in 1992, finding that the cause of action is "antiquated" and that the SC legislature had already abolished the cause of action for criminal conversation in 1988.
Why was Alienation of Affection Abolished in South Carolina?
Originally, the tort of alienation of affection was available only to husbands - since wives were considered the property (chattel) of their husband, enticing someone's wife away from them or having sex with someone's wife was a trespass on the husband's property. Allowing the husband to sue was thought to provide some protection to the marital relationship.
In 1909, South Carolina extended the right to sue for alienation of affection to women in Messervy v. Messervy, 82 S.C. 559, 64 S.E. 753 (1909).
The SC Supreme Court in Russo v. Sutton held that the causes of action "are outmoded and violative of the public policy of South Carolina, and noted that:
- They are ineffective as a deterrent: "When a marriage is viable, an outsider can neither entice one spouse to adultery, nor alter the mental attitude of one spouse toward the other;"
- They "foster bitterness, promote vexatious lawsuits, put marriages on the marketplace, and use marriages as a means of character assassination;"
- They present opportunities for blackmail; and
- They are often brought for vindictive reasons.
Adultery in South Carolina
Although you can no longer sue someone in civil court for having sex with your spouse, adultery is still relevant in family court proceedings. Adultery can affect:
- The grounds for divorce in SC;
- Alimony claims (alimony is barred when the spouse seeking alimony committed adultery);
- The amount of alimony awarded;
- The division of assets in divorce proceedings; and
- Child custody and visitation.
Adultery and Alimony in SC
Adultery is a complete bar to receiving alimony in South Carolina, unless:
- There is a written separation agreement in place; or
- The Court has issued an order of separate support and maintenance.
Adultery and Division of Marital Assets in SC
One of the factors that courts consider when dividing marital assets is "marital misconduct or fault," if the misconduct affected the couple financially or contributed to the end of the marriage. Because adultery is "marital misconduct or fault," in some cases a claim of adultery can have an impact on the division of assets...
You cannot sue for alienation of affection in South Carolina, but, if you are considering a separation or divorce, you have plenty of difficult legal issues to consider, including:
- Is this a simple divorce or a complex divorce?
- Do I need a separation agreement?
- Who keeps the children, who pays child support, and how much?
- Can I get alimony from my spouse?
- What are marital assets and how will they be divided?
Your divorce attorney at Axelrod and Associates will help you to answer these questions, guide you through the difficult and emotional process of separation and divorce, and protect your interests at every step of the way.