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Can You Sue Your Ex-Spouse’s Lover?

North Carolina is one of just six states with “alienation of affection” tort laws. What this means is that, in cases where a marriage ends because of an extramarital affair, the wronged spouse is able to sue their partner’s lover for damages.

Yet just how long these laws will remain on the books is unclear. Last summer, a Superior Court judge in Forsyth County ruled that alienation of affection statutes were unconstitutional. Specifically, the judge held that the laws violate “constitutional protections on free speech and free expression.”

An appeals court later overturned the ruling, noting that the rules “protect the promise of monogamy that accompanies most marriage commitments.” Nevertheless, the court left open the possibility that subsequent challenges to such laws may prove successful.

A brief history of alienation of affection torts

According to a recent article in The Washington Post, alienation of affection statutes date back to the 1800s, and were primarily intended to protect husbands whose wives were seduced away from them by other men.

The tort laws have since become more gender neutral, and only a handful of states recognize them. Evidently, related lawsuits are most common in North Carolina; our state sees more than 200 filings in an average year.

Supporters of the statutes have argued that they are a necessary tool for protecting the sanctity of marriage, and that, as such, state governments have a right to regulate the sexual behavior of individuals involved in extramarital affairs.

Opponents, meanwhile, say the laws do little to preserve marriages, and are simply used by wronged spouses “as blackmail to obtain more money” during divorce proceedings.

What will the future hold?

Forsyth County’s was the first Superior Court judge in North Carolina to challenge the constitutionality of alienation of affectation statutes. “An adult individual’s right to engage in private consensual sexual intercourse…constitutes a fundamental liberty,” he said.

The appeals court overturned his ruling, but didn’t quite disagree. “Our holding is neither an endorsement nor a critique of these…torts,” the court said. “Whether this court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy.”

If, however, there are other, more substantive grounds for finding the law unconstitutional, it seems the court will listen with open ears.