What legal action can I take against the woman my husband has had an affair with?
Full Question:
Answer:
The tort of alienation of affections was first established by New York state
law in 1864 to compensate spouses suffering from as a result of adultery by
their spouse’s adultery. An action for alienation of affections could be
brought against any person who enticed a spouse away from the marital
relationship, including lovers, in-laws, friends, and professional counselors.
However, since 1935, the alienation of affections tort has been abolished by
at least 39 states (including Florida) as an archaic and outdated form of
revenge.
Since most states have abolished alienation of affections, wronged spouses
have tried to recover damages under the cause of action known as
intentional infliction of emotional distress (IIED). Courts have generally
recognized IIED as separate and distinct from alienation of affections, so
that IIED may be available against a third party for conduct that breaks up a
marital relationship, even in states that have abolished alienation of
affections. To bring a successful IIED claim, the party suing must prove four
elements:
• Conduct that is intentional or reckless
• Conduct that is extreme and outrageous
• The wrongful conduct caused the emotional distress
• Severe emotional distress
Still, courts approach IIED claims in the marital context with great caution,
and the burden of proving outrageous conduct is a heavy one for the
aggrieved spouse.
