An Appellate Court in North Carolina ruled in a recent case that a husband, Marc Malecek, can go ahead with suing the doctor, Derek Williams, who had an affair with his wife, Amber Malecek. According to Marc, Derek “lured” Amber, a nurse, into having an affair. Marc claimed Amber would not have had the two-month affair if Derek did not initiate it. According to Marc, until Derek came on the scene his marriage was a “happy one.”
The act of infidelity may lead to what lawyers call “tort” claims. The word “tort” is derived from the French term for “a wrong.” When you commit a “tort” against another person you harm them in some way and that harm may result in the person having a right to sue you to recover damages or to punish you. Some well-known torts are personal injury actions. “Alienation of affection” is the most common name for the tort of having sexual intercourse with another’s spouse.
Even though New York was one of the first states to establish the tort of alienation of affection, New York has abolished this cause of action. New Jersey has also abolished this cause of action.
There are many reasons why most states abolished the tort of alienation of affection. First, many states have established no fault divorce statutes. The public policy behind the no fault divorce is not to cast blame on either side for the breakdown of a marriage. Therefore, the tort is inconsistent with no fault divorce. Second, it is disingenuous for anyone to suggest that they can point to the one thing that caused the breakdown of the marriage. Marriages are complex institutions and it is not usually the case that one thing led to the breakdown of a marriage. Third, judges and lawyers want to primarily focus on the economics of marriage and divorce, such as spousal support and distribution of the assets and debts accumulated in the marriage rather than deal with past hurts and grievances for which there are no good remedies at law. Fourth, the threat of suing someone for alienation of affection may well give rise to extortion, blackmail and unfair advantages in divorce.
In sum, infidelity may be as much of a symptom of a failed marriage as it is the cause of a failed marriage, however, in several states, including North Carolina, infidelity can also lead to lawsuits against “the other man.”