Calling all lawyers: Alienation of affection

September 3, 2008 2:09 PM

How common are judgements for alienation of affection? How can someone best thwart this civil action?

For ten years my brother, who is married with four children, has been seeing another woman. His plan was to leave his wife and be with her when his youngest got a little bit older. His marriage is moribund, but there was never any talk of divorce. He and his wife have essentially lived as rommates. His job and girlfriend are in another town, so he has been able to spend time significant time with her. Besides, the girlfriend is a highly paid professional and works very long hours, so she couldn't spend much more time with him even if they were officially together.

Recently, my brother's affair was uncovered and he is now separated from his wife, and still seeing his girlfriend. When he approached his wife with a plan for an amicable divorce, she essentially accepted the terms, but said that if she discovered that he was seeing the other woman, or if they moved in together she would sue for alienation of affection. (They live in a state where this is still on the books.)

Both my brother and his girlfriend have money, so the financial incentive and means to sue are there. My questions are: How seriously should he take such a threat? How likely is such a suit to succeed? What kinds of things would have to be established for his wife to win a judgement? How can he take steps to ensure that this doesn't happen, especially since he plans to be with his girlfriend?

posted by anonymous to law & government (8 comments total)

That's an antiquated legal notion that isn't likely to gain much traction, primarily because alienation of affection suits require a variety of elements to be proven (by the plaintiff). They're fairly tough to prove and have multiple defenses. (Most states have abolished alienation statutes for exactly those reasons.)

As for what would have to be established/proven, take a look at the relevant's state alienation statute. It lays out the requirements that would need to be proven to succeed in such a case. (If you aren't sure where to find it, you can email me the state and I can look it up for you.)
posted by December at 2:26 PM on September 3, 2008

Ell Ay Doubleyou Why Ee Arr.

I mean, yes, it's generally pretty hard to prove these days. But a real lawyer, not just a mefilawyer, is called for. Particularly as your exact state is of utmost importance.
posted by Tomorrowful at 2:30 PM on September 3, 2008

When one has complicated legal questions, and especially when large (?) amounts of money rest on the outcome, one generally consults a lawyer. They should be listed in your local Yellow Pages, or just call your state Bar Association for a referral.
posted by dirtynumbangelboy at 2:36 PM on September 3, 2008

How can he take steps to ensure that this doesn't happen, especially since he plans to be with his girlfriend?

Do his wife the small favor of waiting until the divorce is final before publicly flaunting his mistress.
posted by sondrialiac at 2:51 PM on September 3, 2008 [6 favorites]

Do his wife the small favor of waiting until the divorce is final before publicly flaunting his mistress.

This is horse & buggy thinking.

Sorry, but the onus is on the wife to get over her jealousy. Maybe she should find someone else instead of dwelling on the past.
posted by Zambrano at 3:58 PM on September 3, 2008

Not knowing the basic realities of the relationship (what reasons were given for having that type of relationship, was he honest with her, did they agree, who was the asexual partner, etc.), both Zambrano and sondrialiac are kind of jumping the gun as well as showing their own biases more than helping the questioner.

Lawyer really is the only one who can help in this.

I hope both parties are able to be honest, fair, and open to the best solution for the family as a whole (fractured though it may be, a family is always a family).
posted by batmonkey at 4:33 PM on September 3, 2008

Sorry, but the onus is on the wife to get over her jealousy. Maybe she should find someone else instead of dwelling on the past.

Yes, but if you want to negotiate amicably with someone, you don't do things that are going to piss them off (or you decide that an amicable negotiation isn't worth what's required to avoid pissing them off)

...and you get a lawyer.
posted by winston at 4:53 PM on September 3, 2008

Like everything in modern divorce, it's not about love, but money. Your sister-in-law is poorly advised if she is trying to use alienation law to keep her husband chaste. That said, where available alienation laws are part of the basic playbook for a wronged spouse's divorce litigation strategy, and especially so when the cheater's boyfriend / girlfriend has his/her own money, because technically the boyfriend / girlfriend is the defendant of an alienation claim, not the cheating spouse. Your brother's divorce lawyer should be intimately familiar with how to price an alienation claim into the alimony and property settlement.
posted by MattD at 4:54 PM on September 3, 2008