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Alienation of affections is a tort-based action.  The idea is that one who purposely alienates one spouse’s affections from the other spouse is subject to liability for the harm thus caused to any of the other spouse’s legally protected marital interests.   “The gist of the tort is the protection of the love, society, companionship, and comfort that form the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage.” Norton v. Macfarlane , 818 P.2d 9 (Utah 1991).    This consortium interest (consortium is defined as the right of a spouse to the company of, help of, affection of, and sexual relations with his or her mate) is the main interest protected.  Sexual relations with the spouse whose affections are alienated is not a necessary element of the tort.  According to Hidges v. Howell, 4 P.3d 803 (Utah App. 2000), to pursue a successful action for alienation of affections in Utah, the plaintiff must prove:

1. The fact of marriage (and actual notice of the marriage);
2. That the defendant willfully and intentionally;
3. Alienated the husband’s/wife’s affections;
4. Resulting in the loss of the comfort, society and consortium of the husband/wife (“consortium” being the entitlement to society, companionship, love, affection, aid, services, support, sexual relations and the comfort of the spouse as special rights and duties growing out of the marriage covenant).

A plaintiff must also prove malice on the part of the alienator to seek an award of punitive damages.

There is a four year statute of limitations for an alienation of affections claim.  The limitations begin to run “when the alienation is accomplished, i.e. when love and affection are finally lost.”  Retherford v. AT&T Communications, 844 P.2d 949 (Utah 1992).  The question of when the alienation was accomplished is generally a question of fact for a jury to determine.

The acts which lead to the loss of affection must be wrongful and intentional, calculated to entice the affection of one spouse away from the other, in order to support a cause of action for alienation of affection.

Recovery for the alienation of affections depends upon the determination of the controlling cause of the injury and necessarily involves an analysis of the quality of the marriage relationship (so get ready for every detail of your personal life and marriage to be scrutinized in open court).

If personalities or inadequacies of the spouses, not the acts of third persons, caused the breakdown of the bonds that are essential to the consortium interests, your case for alienation of affections will not succeed.   Otherwise stated, extramarital, romantic relationships that may only be incidental to, or result from, the primary causes of marital discord and loss of affections will not win your case.  The difficulty lies in trying to determine when the conduct of a third party is the primary or controlling cause and when it is only incidental, and trying to prove this by clear and convincing evidence.

The purpose of a loss of consortium action is not to save a marriage.  It is to allow an “injured” spouse to recover for loss of support, the present value of money and support, consortium, and other legally protected marital interests lost through the defendant’s wrongful conduct, and may also include recovery for the wrong and injury done to his or her health, feelings or reputation.

But how does one value of the loss of the support? In some jurisdictions, it is not necessary that a plaintiff demonstrate that he or she suffered pecuniary loss from the actions of the defendant, as the trier of fact (judge/jury) may also consider the loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and disgrace that resulted from the acts of the defendant.  In other jurisdictions, however, a plaintiff may only recover actual damages and have to show an actual pecuniary loss, such as the spouse’s income.

Although one may still bring a claim for alienation of affections in Utah, many states have abolished this cause of action.  It has been observed that “spousal love is not property which is subject to theft and the plaintiffs in such suits are not entitled to recover for the loss of or injury to “property” which they do not, and cannot, own.”  Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981).  “To suggest that one person possesses rights to the feelings of another is an anachronism.”  Hoye v. Hoye, 824 S.W.2d 744 (Ky. 1992).  Others have suggested that the remedies for such a claim foster bitterness and promote vexatious lawsuits as well as blackmail and extortion—something to keep in mind if you are considering pursuing an alienation of affections action.

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