…If she lived Hawaii, Mississippi, New Mexico, South Dakota, Utah or North Carolina, and if Nichol was a man, she could be prosecuted via what is known as “tort law” regarding alienation of affection. Couldn’t she?
The “if she was a man” clause in the statement above should give you pause, and should alert you to the sexist nature inherent in this tort law. Where did the this law come from? The apposite question isn’t where but when.
The Alienation of Affection law is an antiquated legal artifact dating back to the 18th century. It was originally a pretty sexist legislation, designed to protect a paternal setup: a husband’s property rights were protected by this law, including the recognition that the wife was the property of the husband during that time. And so a third party cheating with her could be accused of “damaging” the property of the husband. Of course no such law existed then to protect the interests of the other spouse – the wife.
Arguably, society and the law have both changed so much that the law doesn’t necessary protect the rights any more of either spouse during adultery. Although I studied family law for one year at university, I’m no expert on the subject, but it seems clear that it only kicks in due to contractual arrangements, and not by default. Based on whether the couple were married in community of property or not, that will determine to some extent how assets are divide. If married out of community of property, very few protections apply.
According to Vice.com:
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.
TCRS: Only a man can be sued in this scenario.
More: His wife cheated on him. So he sued the other man for $750,000 — and won. – Washington Post