An alienation of affection, or spousal alienation lawsuit is one that is brought against a third party, a person who is outside of a marriage. Also known as the “heart balm” or “homewrecker” tort, spousal alienation usually involves a cheating spouse and their non-marital partner, a third party.
An example of this would be a love triangle, where one spouse has been secretly conducting an adulterous relationship. The spouse who has been the victim of the other spouse’s infidelity would file a lawsuit against the third party for alienation of affection.
Less common, but still done, are cases involving other third parties such as in-laws, members of the clergy, therapists, and parents. Anyone outside the marriage who has interfered with it may be named as a defendant in a civil lawsuit. It is not required that the third party has had an adulterous, romantic relationship with the spouse whose affections have been alienated.
The harm alleged in a suit for alienation of affection is not physical harm, of course, but harm to the victim’s dignity and reputation. Also, the victim can allege negligent or intentional infliction of emotional distress.
Can Same-Sex Couples File Alienation of Affection Lawsuits?
In the states that still allow alienation of affection claims, the law applies to all legally married couples. This includes same-sex marriages. After the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, same-sex marriages carry the same legal rights as any other marriage. That means a same-sex spouse can bring an alienation of affection claim under the same rules as any other married person. The key factor is whether you are legally married in a state that still recognizes the tort, not whether the marriage is between opposite-sex or same-sex partners.
How Common Are Alienation of Affection Lawsuits?
Most states have eliminated the cause of action for alienation of affection. The contemporary attitude adopted in 43 of the 50 states seems to be that all is fair in love and war.
As of early 2026, alienation of affection lawsuits are recognized in only a handful of states. The New Mexico Supreme Court abolished the tort in January 2026 in Butterworth v. Jackson. Utah’s legislature passed SB 109 to eliminate the claim, set to take effect in May 2026. Illinois repealed its alienation of affection law in 2016. The states that still allow alienation of affection claims include:
- Hawaii;
- Mississippi;
- North Carolina;
- South Dakota;
- Utah (until May 2026, pending the effective date of SB 109).
Adultery and divorce are much more common in modern society, so these types of lawsuits have dwindled in frequency. If a person does not live in one of the seven states that still recognizes the tort of alienation of affection, it may still be possible to file a lawsuit. An experienced family law or personal injury attorney may best advise a person on their options.
Part of the problem is not only that adultery and divorce become increasingly common, but also success with an alienation of affection lawsuit requires proving that a marriage was healthy and characterized by a loving, caring relationship before the defendant appeared on the scene and alienated one spouse’s affections. Realistically, if one spouse turns to a relationship outside of a marriage, it is highly likely that the marital relationship was less than ideal, and it may well have been “on the rocks,” so to speak.
How Do Alienation of Affection Laws Differ by State?
Each state that recognizes alienation of affection applies the law a little differently. In North Carolina, which sees the most cases (over 200 per year by some estimates), claims must be based on conduct that happened before the spouses physically separated. North Carolina also has a “long arm” statute, which means its courts can reach out-of-state defendants if the injury occurred in North Carolina.
In Hawaii, the law is more restrictive. The plaintiff must show that the alienated spouse did not seek out the defendant, and the plaintiff must also prove there was no fault on the part of either spouse within the marriage.
Mississippi courts have treated alienation of affection as a “latent injury” claim, meaning the statute of limitations clock may not start until the injured spouse discovers or should have discovered the affair. South Dakota upheld the tort’s validity in a 2018 state Supreme Court decision, confirming it remains firmly in place there.
Because these laws can change quickly, as seen with New Mexico’s 2026 abolition and Utah’s pending repeal, it is very important to check the current law in your state. A local attorney will know whether the tort is still available where you live.
What Do I Have to Prove in My Alienation of Affection Claim?
According to alienation of affection state laws, the injured spouse must prove the following four elements to succeed with their lawsuit:
- There was some degree of love between the person and their spouse;
- The spouse’s love and affected was alienated, or destroyed;
- The conduct of the third party caused or contributed to the alienation of the spouse’s affection. It is not necessary to allege intimate relations between the spouse and the third-party defendant. Other types of actions could be enough to support the claim;
- The wronged spouse suffered compensable harm as a result of the alienation of their spouse’s affection.
Usually, a person does not need to prove that the third party intended to destroy their marriage, only that the acts they engaged in would have a foreseeable, negative effect on the marriage. A person also does not need to prove that their marriage was a perfect one, only that there was some amount of love between the person and their alienated spouse.
The civil wrong of criminal conversation is a companion tort to alienation of affection. Success with a claim of criminal conversation requires proof that the alienated spouse and the third-party had a sexual relationship. Again, success with a claim of alienation of affection does not require proving a sexual relationship or even a non-sexual romantic liaison, because alienation of affection can be claimed against anyone who might have turned a spouse against their marriage.
If a person is successful with their claim of alienation of affection, then they could be awarded compensatory damages. The damages would be to compensate for loss of consortium, mental anguish, humiliation, and possibly punitive damages, if the conduct of the defendant third-party was especially condemnable. Usually, however, in a lawsuit of this type, proving conduct that would justify an award of punitive damages would be challenging at best.
What Evidence Helps Prove an Alienation of Affection Claim?
To build a strong case, you will need evidence that shows two things. First, you need proof that real love and affection existed in the marriage before the third party got involved. This can include wedding photos, love letters, cards, social media posts, vacation pictures, and testimony from friends and family who saw the marriage firsthand.
Second, you need proof that the third party’s actions caused the loss of that affection. Text messages, emails, phone records, and social media messages between your spouse and the third party can be very strong evidence. Financial records may also help. Things like gifts, hotel receipts, or credit card charges for trips can show the scope of the relationship.
What Are the Steps to File an Alienation of Affection Lawsuit?
If you believe a third party has damaged your marriage, the first step is to talk to a family law or personal injury attorney in your state. They will review your situation and tell you whether you have a viable claim. If you decide to move forward, the attorney will draft a complaint. The complaint is the legal document that spells out your allegations against the third party and the damages you are seeking.
After the complaint is filed with the court, the defendant must be formally served with a copy. The defendant then has a set amount of time to respond, usually 20 to 30 days depending on the state. From there, the case enters the discovery phase. During discovery, both sides exchange evidence, take depositions, and build their arguments.
Many alienation of affection cases settle before trial, especially when the defendant wants to avoid a public airing of the details. If the case does not settle, it goes to trial, where a judge or jury will decide whether the defendant is liable and how much in damages to award.
Is There a Deadline to File an Alienation of Affection Lawsuit?
Yes. Like most civil claims, alienation of affection lawsuits must be filed within a set time frame called a statute of limitations. The exact deadline depends on your state. In North Carolina, the statute of limitations is three years from the last wrongful act by the defendant, under N.C. Gen. Stat. § 1-52(5).
In Mississippi, courts apply a three-year statute of limitations as well, though the clock may start at different times depending on when the injured spouse became aware of the affair. In other states, the deadline is typically between one and three years.
How Much Does an Alienation of Affection Lawsuit Cost?
The costs of an alienation of affection lawsuit can vary widely. Attorney’s fees are usually the biggest expense. Some attorneys charge by the hour, and rates will depend on your location and the attorney’s level of experience. In North Carolina, where these cases are most common, legal costs often start at $25,000 or more to prosecute or defend a case through trial. Court filing fees, service of process fees, and fees for obtaining records are additional costs. Many cases also require expert witnesses to testify about damages, which adds to the overall expense.
What Are the Possible Defenses to Alienation of Affection?
Possible defenses available in an alienation of affection lawsuit are as follows:
- Lack of Affection in the Marriage: The obvious defense would be that the marriage was not a happy one and the adulterous spouse turned to an outside relationship because of their unhappiness in the marriage. The marriage does not have to be perfect, but evidence of constant fighting, lack of time spent together, prior separations, and possible other adulterous affairs tends to show significant unhappiness. Still, the fact that there were problems in the marriage do not, on their own, establish a defense unless such unhappiness had negated all affection between the spouses.
- Consent of Plaintiff: It is unusual but possible to show that the spouses involved had an “open” marriage or engaged in spouse-swapping type relationships and that the plaintiff consented to the adulterous affair;.
- Connivance: Connivance would essentially mean that the outside party was tricked into having the affair so that it would lead to the end of the marriage. This is rare;
- Acts Post-separation Only: The idea here is that the alienating conduct occurred only after the spouses separated so they cannot be the basis for a claim of alienation of affection;
- Lack of Knowledge: The defendant could claim that he did not know the spouse of the victim was married:
- Poverty of Defendant: If the defendant establishes that he or she is essentially destitute, then a case for alienation of affection is essentially not worth the time, expense and effort it would take to prosecute it. People do not have insurance for this kind of thing, which would pay a judgment if the plaintiff obtained one. So, there may be little point in going forward if the defendant would not be able to pay damages.
Note that it is not a defense that the unfaithful spouse consented to the defendant’s conduct.
This last defense, poverty of the defendant, may often be the factor that leads to an alienation of affection settlement. Again, people do not carry insurance coverage that would pay a judgment even if the plaintiff were to obtain one. It would not be covered by a person’s homeowner’s insurance or auto insurance.
What Are the Risks of Filing an Alienation of Affection Lawsuit?
Filing an alienation of affection lawsuit comes with real risks you should think about before moving forward. If your allegations are found to be false or made in bad faith, the defendant could file a counterclaim against you. Common counterclaims include defamation, abuse of process, or intentional infliction of emotional distress.
There is also the risk of losing the case and still being on the hook for your own attorney’s fees without recovering any damages. These lawsuits often involve very personal and embarrassing details about your marriage. Court records are usually public, which means private information about your relationship could become available to anyone.
If children are involved, the emotional stress of the lawsuit can affect custody situations and family relationships. Weighing these risks with an experienced attorney is a smart move before filing.
When Should I Talk to a Lawyer About Alienation of Affection?
You should talk to an attorney as soon as you believe a third party has damaged your marriage. Early action matters for several reasons. Evidence like text messages, emails, and financial records can disappear over time. Witnesses’ memories fade. The statute of limitations is running from the moment the last wrongful act occurs.
Some specific triggers that should prompt you to call a lawyer right away include: finding out about a spouse’s affair, learning that a family member or counselor actively encouraged your spouse to leave, noticing a sudden and unexplained change in your spouse’s feelings toward you, or if you and your spouse have recently separated and you suspect a third party played a role.
Do not wait until after the divorce is final. By then, evidence may be lost and your filing window may have closed.
What Happens If I Try to Handle This Case on My Own?
Alienation of affection lawsuits are not a good fit for self-representation. The legal rules around these claims are unusual and differ from state to state. You need to prove specific elements to win, and the other side will likely have an attorney who knows how to challenge your evidence and raise defenses. Without legal training, you may miss the filing deadline, fail to gather the right evidence, or make mistakes during discovery that hurt your case.
Do I Need an Attorney?
Since alienation of affection claims are not as common as they once were, it is a good idea to consult with an experienced family law attorney and/or a personal injury attorney. They will be able to help you determine whether or not you have a case. They can also help you decide your best course of action based on your circumstances.
