Heartache is messy; marriage is made of compromise. How potentially satisfying, then, to see all the mess and ambiguity turned into something simple and unequivocal in a lawyer’s brief. In North Carolina and a handful of other states, a jilted spouse can indeed sue for heartbreak.
Your browser does not support the <audio> element.
Under an archaic tort called “alienation of affection”, a third party—someone outside the marriage—can be liable if shown to have intentionally ruined the marital bond. Paramours are the most common target, though Alice Stubbs, a divorce lawyer in Raleigh, the capital of North Carolina, says plaintiffs have sued their mother-in-law. Anyone who has sex with a married person is liable under another tort called “criminal conversation”.
The “heart-balm” torts are at the centre of a drama captivating the North Carolina capitol. On June 18th Scott Lassiter, an assistant school principal, sued Tim Moore, the speaker of the state House, for having an affair with his wife, who works in the state government. Mr Moore, the lawsuit says, “deprived [him] of Mrs Lassiter’s love, society, companionship and consortium and proximately caused [their] marital separation”. Mr Lassiter is seeking at least $200,000 in damages. Mr Moore says it was his understanding that the Lassiters had already separated, which, if true, could get him off the hook. The speaker wants his colleagues in the state legislature to ban lawsuits of this sort.
North Carolina has had some eye-popping judgments. In 2011 the new wife of a trucking magnate was ordered to pay $30m to his ex. Such lawsuits are more common than you might think: last year 185 were filed across the state for alienation of affection. And the threat of one, to extract a settlement and keep things confidential, is even more widespread.
Success depends on how rich the target is. In that way the lawsuits resemble legalised blackmail. They also afford leverage in divorce proceedings. A husband who wants to spare his mistress a lawsuit may give his soon-to-be ex-wife more alimony, child support or the beach house if she waives her right to sue.
The torts date from a time when a wife was considered her husband’s property; the idea was that he should be able to sue anyone who seduced her or “stole” her affections. Starting in the 1920s most states stopped recognising the wrongdoing, owing partly to that misogynistic provenance. (North Carolina, by contrast, gave wives the opportunity to sue too.) Others dislike the idea for its woolly legal standard. To claim injury, plaintiffs must show that there existed “some degree of love and affection” in the marriage. But how to prove that in a rigorous way?
Then there is the cost—in acrimony and embarrassment—of allowing such lawsuits. People considering a complaint must prepare to be reminded of everything that they ever did wrong in their marriage. Defendants will dredge it all up. Ms Stubbs urges jilted clients to consider how many sunsets they have left and whether they want to spend them battling their ex’s lover in court. Why not write them a thank-you letter instead? ■
Stay on top of American politics with Checks and Balance, our weekly subscriber-only newsletter, which examines the state of American democracy and the issues that matter to voters.
