Alienation of Affection: Litigation and the Treatment of Intimate Deception

Episode Notes

Transcript

Jill Hasday:

The whole idea of the claim is that you’ve suffered an emotional injury. That’s the premise of the claim. And within the world of emotional injury, there are a few things that can be as distressing as someone basically luring your spouse away or destroying your spouse’s love for you.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I have three books out titled How To Get Sued the Sled and my newest book. How would You Decide 10 Famous Trials That Changed History? You can find all three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. Well, recently in the state of North Carolina, a judge ordered a TikTok influencer to pay $1.75 million for destroying her manager’s marriage, citing a common law tort called Alienation of Affection. Alienation of Affection lawsuits are still legal in a few states, including Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. For those in the legal community who are unfamiliar, alienation of Affection is a legal claim that allows a person to sue a third party for intentionally ruining their marriage and destroying the spouse’s love and affection.

Today on Lawyer 2 Lawyer, we will spotlight the tort of alienation of affection and heart bomb torts. We will discuss litigation states that recognize alienation of affection, heart bomb engagement, ring cases, and the law’s treatment of intimate deception. Well, without further ado, we’re joined by our very special guest, Jill Hasday. She’s a distinguished McKnight University professor and the centennial professor of law at the University of Minnesota Law School. She teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. She’s written a number of books including Intimate Lies and the Law from Oxford University Press in 2019, and most recently we the Men, how Forgetting Women’s Struggles for Equality Perpetuates Inequality. Also from Oxford University Press printed this year in 2025. Welcome to the show, Jill.

Jill Hasday:

Thanks for having me.

J. Craig Williams:

Well, Jill, how did you become interested in constitutional law and family law and maybe to be a little bit corny, love

Jill Hasday:

And love. Well, I consider myself an anti-discrimination scholar, and I’m interested in exploring how the law both combats and contributes to inequality, whether that’s at the highest levels of government and in daily life on love, I would say I’m interested in love because I’m a human being in the world,

J. Craig Williams:

Right, as are most of us, I think.

Jill Hasday:

Right.

J. Craig Williams:

Let’s talk about what we came here to discuss, the tort of Alienation of Affection. It sounds kind of archaic. What is it?

Jill Hasday:

Okay, so the tort of Alienation of Affections developed as one of four heart bound torts, and I want to just provide a little context on that before I get to alienation of affection specifically.

J. Craig Williams:

Sure.

Jill Hasday:

Judges and legislators in the 19th and early 20th centuries were very worried about the consequences of sex outside of marriage, both for the parties involved, especially white middle class women, but also to society as a whole. And one way that both courts and state legislatures responded to what they saw as the dangers of sex outside of marriage was by developing special causes of action, special claims that allowed people to seek redress from harm stemming from non-marital sex. Over time, legal authorities developed four basic causes of action that were known collectively as Heart bound Oratory Torts. The four were a breach of promise to marry seduction criminal conversation. And our topic for today, alienation of affections. These actions sometimes mimicked suits who could bring elsewhere in the law. For instance, the rules governing breach of promise to marry suits who promised to marry me and he didn’t do it, often tracked many features of contract law, but the heart bound torts were special causes of action exclusively for injuries within intimacy.

Criminal conversation and alienation of affections were concerned about adultery and the destruction of marital relationships. So the old joke about criminal conversation suits are that they’re in aptly named because the litigation is neither criminal, nor is it about conversation. Instead, criminal conversation suits allowed a husband to sue his wife’s lover for damages even if the woman had pursued the affair with gusto, alienation of affection suits. Also worried about adultery allows a plaintiff historically, usually a husband, but sometimes a wife to sue someone who had meddled in his marital relationship and caused him to lose the affection and exclusive sexual companionship of his spouse even if the spouse hadn’t actually had an affair. And then the two other heart bound torts reia promised to marry and seduction were focused on situations where the defendant had lured the plaintiff into sex, usually by promising to marry her.

J. Craig Williams:

And generally speaking, what has been the remedy of these cases? The people recover damages from them. There’s been a recent case, I think, where somebody got rather significant damages,

Jill Hasday:

Right? So in law there’s a variety of damages across cases could get for obvious reasons. Specific performance is not a real possibility here. The law can’t order you to go back to loving your husband or your wife. Money really is the only possible remedy, and that is the remedy awarded.

J. Craig Williams:

So do people recover a lot of money? I think I saw one judgment from North Carolina this past week or so that was 1.65 million for alienation of affection. Is that typical?

Jill Hasday:

Well, six states at one point, virtually every state had alienation of affections. At this point, only six states still have the claim. Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. North Carolina gets the most attention all the time. It seems to be. I haven’t done a systematic study trying to trace every case, but it seems to be that there are both more suits brought in North Carolina and that at least some people get very high damage awards, which as you can imagine, is what attracts media attention.

J. Craig Williams:

Right. Well, with that, has there historically been significant damages or is this more just a kind of a sword fight between men?

Jill Hasday:

There can be significant damages. I mean, I’ve seen 19th century cases where people got $2,000, which was quite a considerable purse in part because the whole idea of the claim, and we can get into what the elements are, but the whole idea of the claim is that you’ve suffered an emotional injury. That’s the premise of the claim. And within the world of emotional injury, there are a few things that can be as distressing as someone basically luring your spouse away or destroying your spouse’s love for you.

J. Craig Williams:

Right. That was going to be my next question. What are the elements that are necessary to prove these torts?

Jill Hasday:

Okay, so state law, not surprisingly varies. I’ll focus on North Carolina because that appears to be where the action is. So in North Carolina, plaintiffs need to prove three elements. First element is plaintiff has to show the plaintiffs, the person suing and saying, you destroyed my marriage. You the defendant, destroyed my marriage. First element is the plaintiff has to show there was genuine love and affection in the plaintiff’s marriage before the defendant intervened. So not things were perfect, but things were good. We had a loving and affectionate marriage. That’s the first element. Second element is the love and affection in the plaintiff’s marriage is now alienated. That’s the word that tort uses, and that basically means damage or destroyed to a significant degree. Third element is the defendant’s wrongful and malicious acts cause this loss of love and affection. Defendant’s conduct has to be intentional. There’s an assumption if the defendant had sex with the plaintiff’s spouse, the law assumes malice. In other words, just to do kind of a stupid example, like your spouse sees a picture of some movie star on a poster and is like, that’s what I want, not my husband. You couldn’t sue the movie star because the movie star hasn’t tried to interfere with your marriage. Even if looking at the movie star causes your spouse to be less satisfied with you,

J. Craig Williams:

I would imagine that in most cases, the wife or the spouse in this case is going to say, God, my marriage was terrible. There was no love and affection and making it kind of difficult to prove that there was. How does that work?

Jill Hasday:

Well, I mean, as you can imagine, there’s cases with stronger and there’s cases with weaker evidence. So for the first element, there was love and affection. There can be direct testimony. Obviously the plaintiff will testify that there was love and affection, but there also can be witnesses who come and say, I saw them cuddling and they were always holding hands or look at this lovely poem my spouse wrote to me, et cetera. So people can have more or less evidence of love and affection. In some cases, when people lose, they often lose because the trier fact finds actually the marriage was very shaky before the defendant appeared on the scene. But in other cases, the plaintiff has good evidence, the marriage wasn’t shaky.

J. Craig Williams:

How long has this shakiness go on? I mean, marriages go up and down in the course of their time.

Jill Hasday:

All of that is fought out, right? There’s no algorithm, it’s just all fought out. The better the plaintiff’s evidence of the marriage was filled with love and affection, the more likely the plaintiff is going to win. The better the defendant’s evidence that things were shaky, the more likely the defendant’s going to win. Often when the defendant is making a claim that the marriage is shaky, they have specific things like, look, one spouse started using drugs. There’s something they can specifically point to that really was, or there was a huge debt that was a big strain on the marriage. There’s often something the defendant is pointing to as that was really a turning point in the marriage quality before I appeared on the scene.

J. Craig Williams:

Right. Well, this is kind of a double-edged question or two-sided question. Why has there been so many states that have abandoned these torts and why are six of them still hanging onto them?

Jill Hasday:

Okay, so two parts in general, starting with Indiana, in 1937 states began to pass what were called anti heart bound statutes, prohibiting some or all of these torts. The standard story legislatures told was that women were bringing false actions to dupe wealthy men. In my own work, including in the book Intimate Lies in the Law, I point out that there’s actually really not evidence of fraudulent claims. Women are often accused of bringing false claims when they accuse men of misconduct, but at least this story that this was all being brought by Gold diggers was very effective with the legislators that were virtually all male, almost entirely male, and many states moved away from it starting in the 1930s and then accelerating over time. Now let me do the other side. So YF states stayed with it in North Carolina, at least at this point. There is a well-established bar that has expertise in bringing these cases, has had success sometimes in getting very high judgments, and not surprisingly is committed to keeping this cause of action. So I think that they have been, the lawyers that bring these claims have been a successful countervailing force to potential efforts to get rid of them. And if you do a quick Google search, you will see many North Carolina law firms talking about their record of these cases and explaining what kind of evidence you need. And we’ve had a lot of success and we can help you too,

J. Craig Williams:

Follow the money at this time. Let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Professor Jill Hasday from the University of Minnesota Law School. Let’s talk briefly because it kind of segues into it about the promises to merit. You mentioned that there was some concern about women fraudulently bringing claims. Well, men seem to entice women into sex for the promise of an engagement ring or the promise of marriage. What happens in those circumstances when the potential husband says, well no, thanks a lot for the one night stand. See you later.

Jill Hasday:

Yeah, so that is pretty much the point of the chapter. I go into this in my book, intimate Lies in the Law, whereas legislatures claimed that women were bringing false suits for breach of promise to marry, and they never really engaged with the reality that in many cases it was very clear that the promise to marry was never sincere. For instance, the man was already married. That’s not always true, but there are many cases where it’s clear that it’s not a change of mind, but it’s deception at the outset. But these arguments that women are gold diggers and can’t be trusted, we’re successful in getting virtually every state to get rid of breach of promise to Mary. And as a result of which, I mean one of the themes of my book is that the law generally denies remedies for intimate deception. And that’s one example.

J. Craig Williams:

Let’s briefly talk about engagement rings. What happens when an engagement ring is given and the engagement breaks up and talk about the circumstances where it’s great grandmother’s ring from Wales that has been passed down through centuries and the one that was just a promise ring bought on the corner.

Jill Hasday:

Okay, the laws of engagement. So there’s a little variation between states, but generally the key question in these engagement ring suits is whether this ring was given as an engagement ring versus as just as a gift. And there can be litigation around that. And for instance, evidence that it was a family heirloom and you did not have an intent to keep it out of the family can obviously go to that. Some people have criticized the law about returning engagement rings on the following ground. I’ll just give them your argument. So if at least traditionally a woman’s family pays for most of the wedding or all of the wedding, the man pays for the engagement ring. If the rule is he can get his engagement ring back, then he’s getting back the money he put out. But there’s no mechanism for the woman to get the man to contribute to I lost the deposit, or I paid thousands of dollars for this dress I can’t wear, et cetera. So it’s like a one way undoing of the financial exchange, which seems a little unfair.

J. Craig Williams:

That was exactly kind of the next question. How do these alienation, torts, and these promised torts lead to inequality in the law? How does it perpetuate it?

Jill Hasday:

Well, one of the points I make in my book, intimate Lies in the Law is that actually every demographic group can both practice deception and be subject to it. I think one reason for the law’s general hostility to intimate deception claims is the assumption that these are being brought by women against men, but that’s not always true. But stated generally the law sides with deceivers rather than the people they deceive and allows people to get away with inflicting what I think anyone would recognize as enormous harm, I mean of a kind that the law is generally quite sensitive to. So someone promises you a job and you quit. Someone says they’re going to hire you, you quit your job, you move across the country, they end up canceling the contract. You very well might be able to get some compensation for quitting your old job, moving across the country, someone says, let’s get married, quit your job, move across the country to live with me. Turns out they’re already married to someone else. You really can’t get a claim against them. And that distinction just doesn’t make sense to me. If someone can bring the sort of claim that would be recognized if they were in an intimate relationship,

J. Craig Williams:

What remedies do legislatures need to put into place to fix those things?

Jill Hasday:

I have a lot of suggestions, but I would say my main suggestion is that if there is a cause of action available, someone shouldn’t be barred from bringing it simply because there’s an intimate relationship. And I can give you a quick example from my book. So this woman meets a man, goes by the name Jesse James online, they have endless phone calls, text messages, packages. He extracts almost $10,000 in gifts from her and he puts her through the emotional rigor. He says he’s dying of liver cancer, he tried to kill himself. Well, because the stories in my book you, it turns out he doesn’t exist. He is a facade created by this woman who goes so far as to use like a voice, distorter on the phone, et cetera. The deceived woman sues for fraudulent misrepresentation in Illinois and she seems to have all the elements of the claim. The defendant lied.

The defendant wanted the plaintiff to rely on her lies. The plaintiff did reasonably rely, and she suffered both financial and emotional harm as a result. And the Illinois Supreme Court says, you can’t sue because this was deception within an intimate relationship, to which I had two responses. One, look how broadly the court is defining intimacy. These two didn’t even meet until right before the deception was unveiled. That’s the whole reason that she was able to get away with the scheme. But second, why should you be categorically barred from bringing a claim for fraud or misrepresentation or battery or whatever, just because the court thinks it was an intimate relationship. If you can meet the ordinary rules for establishing fraud that the law would ordinary look for, I think the legislature should allow your claim to go forward.

J. Craig Williams:

How does bias contribute to that kind of a decision?

Jill Hasday:

If you look at the cases, you can see a lot of gendered assumptions go through it. So for instance, there are many cases over the decades that women have brought this man duped me into marrying him by lying about something enormous. And in one of the cases, this is from the thirties, the man claims to have a job and money in the bank and it’s all a lie. And she sues at the time to get out of a marriage, you have to show cause there’s not just no fault divorce. So she’s trying to say, he lied to me about everything. I would like to have an annulment. And when the court says no, they basically say that heterosexual mating and even the reproduction of the human race depends on deception. A man has to be like a rooster strutting and distracting a mate. And to me that’s pretty ripe with gender norms about what men are allowed to do to convince women to enter into intimate relationships with them.

J. Craig Williams:

To be a devil’s advocate here, a man’s going to argue the same thing with bright lipstick and enhancements and tight clothes and all the rest of it. How do you balance that?

Jill Hasday:

I mean, you have to be able to, under my approach, you have to be able to meet all the ordinary elements. So for instance, in a fraud, you have to show that it was material. It actually fooled you if you can actually materially be fooled about the color of someone’s lips by lipstick. And that’s what changed your mind about marrying them. I just don’t think that’s a problem in the actual world. The cases that people want to bring are about big things that anyone would’ve changed their view. So you said you are presented your life as you’re a doctor and you have a stable family and in fact you are unemployed and a drug. I mean, these are big things. It’s not at the margin. She brushed her hair very nicely for our date and we went to a place with low lighting. I mean, it’s just not plausible. That’s not what the cases are about.

J. Craig Williams:

Right, exactly. And let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Professor Jill Hasday from the University of Minnesota Law School talking about alienation of affection. What’s the reluctance in the judicial system to deal with this intimate deception and intimacy? Is it that we just get prickly when we start to deal with emotions and feelings and how people relate to one another and we can’t distinguish the hard and fast rules and contracts and things like that? Where does this come from?

Jill Hasday:

I think that’s a complicated question, and of course courts generally don’t say why they’re uncomfortable with it. But I will say that to me it fits into a broader pattern of the law being most comfortable giving remedies for financial and physical harm and less interested in giving remedies for emotional harm. I have to say one of the things I found most surprising when I wrote Intimate lies in the law is how many people lose even when they have very economic claims. So I’ll give you another example from the book. There’s this doctrine in divorce law called Waste. And the basic idea is it can’t be the case that when you know you’re about to get divorced, you can clean out the joint accounts or you can go buy yourself 10,000 CDs and get away with it. It has to be that effort to sort of defraud the court by taking more than your fair share at the end.

There has to be some check on it. So this woman in Virginia, she’s married to this man, he runs an independent construction business. It’s marital property. He develops it during the marriage. She works there, it’s marital property. They undergo a brief separation at one point, and during that separation he sells the company to his father, but the father doesn’t give him a single dollar in cash, instead gives him an IOU for like a hundred thousand dollars, which is much less than the business is worth. The business is worth multiple millions of dollars. He doesn’t tell his wife. This is all secret, secret. And years they get back together. At the end of the summer, years later, they divorce. And obviously as she’s suing, she says, I want my share of the marital property, which includes this family business. He says, lo and behold, it belongs to my father, not to me.

So she tries to bring a claim under waist, which is you’re basically, you got rid of marital property as a way to thwart me from getting it, and the court just will not go into it. They say, no, it belongs to the father-in-law. And to me it’s so striking because that is not about emotional injury, that is just about financial fraud and courts are so reluctant in more cases than you would think to get into what seemed like core legal claims that the law is well-equipped to deal with because it took place within a marriage. And that was very surprising to me. This

J. Craig Williams:

Is surprising to me too. Do you think that now that we have female judges in place, that there’s going to be more understanding along these lines?

Jill Hasday:

We’ll say. I mean, I don’t think all, I don’t want to say that all women think the same, and there’s certainly many counter examples, but it is striking to me how many times when you look at the cases, judges suggest either explicitly or implicitly some worry that if I sided with the plaintiff against this defendant, I would be suggesting that my own behavior and intimate relationships wouldn’t have been isn’t great. Right.

J. Craig Williams:

Ownership.

Jill Hasday:

Right. So maybe more female judges would help push in the right direction.

J. Craig Williams:

You’ve also written another book, we The Men, how Forgetting Women’s Struggles for Equality Perpetuates Inequality. Talk about inequality, talk about that for a bit.

Jill Hasday:

Okay, so the United States Constitution purports to speak in the name of we, the people. I wrote this book because too many of the stories that powerful Americans tell about law and society include only we the men. And the punchline of the book is that remembering women’s stories more often and more accurately is not only truer to the actual experience of the United States, but can help the nation advance towards sex equality. In particular, I talk about two ways in which women are forgotten. Just to give a little preview. One is just keeping women out of the story entirely, but the other is by announcing that sex equality has already been achieved. Anyone who lives in 21st century America, I suspect has encountered someone who assumes the sexist battle days are all behind. But one of the things I found researching the book is that newspapers, courts, legal authorities, they’re saying that sex equality has been left behind in the early 19 hundreds before we even have the 19th amendment making sex-based disenfranchisement unconstitutional. And I show in the book how those announcements that sexism is a thing of the past, have really operated to help maintain inequality. Women sue and the court will say, whatever women are asking for, they don’t need, they already have a quality. In fact, giving this to them would be going too far the end. So they’re announcing a quality as a way of covering up from the fact that they’re maintaining an unequal situation.

J. Craig Williams:

Exactly right. We can’t have this conversation in a vacuum. We have to recognize what’s currently going on in the country. How would you advise women to deal with the kind of changes that we’re seeing in attitudes from the current administration?

Jill Hasday:

I have to say that writing the men my new book has made me actually oddly optimistic because one thing I think you can really learn by looking at the long sweep of American history is that there’s been so many hard times before, just a few years before women get the 19th Amendment, suffragists are literally being dragged on the sidewalk. They’re bloody on the sidewalk, they’re being arrested and force fed, and then six years after that they get the 19th Amendment. So I’m not saying that the next days and weeks and months and years are hard, but it’s important to remember that everything women have ever gotten has taken multi-generational struggle. And the only way to do that is to keep going,

J. Craig Williams:

Keep pushing forward, keep

Jill Hasday:

Pushing, because if you give up, it definitely will not happen. Another thing I talk about in the book is something I call men’s spontaneous enlightenment stories, which is often when history books talk about how women’s status improved over time, it’s written as if men just woke up one day and said the night of the men would be a great idea. Not surprisingly, that’s actually not how change happens. You have to push. You have to push and not give up. Waiting patiently for men’s spontaneous enlightenment is not going to get you anything.

J. Craig Williams:

Last question here before we finish up. What advice would you give to men in response to your book

Jill Hasday:

In response to we the Men? Well, I think one message I really have is that feminism is for everyone. Men are also trapped in sex roles. For instance, the idea that the only legitimate emotions that men can express in public are rage, frustration, and vengeance, I think is not a healthy way to live. Feminism is about everyone being able to explore all the aspects of their personality and live as they would like in equal partnership with other human beings, which I think is the most satisfying way to live.

J. Craig Williams:

Fantastic advice. Well, it’s just about time to wrap up and get your final thoughts about today’s topic, as well as letting people know about how to access your books, which frankly are wonderful reading.

Jill Hasday:

Thank you. So my books are available anywhere you like to buy books, including Amazon and Barnes and Noble. I also have a website, jill hasday.com, where you can get more information and click on reviews and things like that.

J. Craig Williams:

Alright. Well, Jill, it’s been an absolute pleasure to have you on the show this morning. Thank you very much.

Jill Hasday:

Thanks so much for having me. I appreciate it.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. These torts are certainly an archaic style of torts, but obviously still exists because of the money that tends to be involved with them. Perhaps it’s time to rewrite these cases and rewrite these statutes and torts so that they’re equally balanced between women and men. Or perhaps it’s best just to get rid of them all together. What’s your thought? Let us know. Well, that’s it for my thoughts about today’s topic. Let me know what you think. If you like what you heard today, please rate us on Apple Podcasts to your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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