Another Perspective

Sue to Protect Your Marriage

Ever feel like suing your husband's weekend lover? You might have a case.

By 7.21.11

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Roland C. Warren, president of the National Fatherhood Initiative, published an essay in the Washington Post online, July 8, and in print, July 10, decrying the fact that women who have had affairs with male public figures, such as Arnold Schwarzenegger, John Edwards, Tiger Woods and Eliot Spitzer, have become celebrities. He says these women knew that these men were married. They should not be "media darlings," but should be shunned as homewreckers. He says wives should fight back, just like Candy Lightner did 30 years ago when she started Mothers Against Drunk Driving (MADD) after her teen-aged daughter was killed by a drunk driver.

One way women could fight back is by suing the women who have interfered with their marriage. Our states used to provide a legal remedy in such a situation. Spouses aggrieved by an intruder into their marriage had the right to sue the intruder for "criminal conversation" (requiring adultery) or "alienation of affections" (not requiring adultery). Over the past few decades the legislatures or supreme courts of about 40 of our states have abolished these rights. Why did they do so?

Many legislators, judges, and members of the public think that married people are free -- free to roam, free to play the field. No promise, no vow, no commitment they voluntarily made should be so strong that they cannot unilaterally withdraw. As for the third parties to a marriage, they are free to hit on a married person. Our laws won't let them stalk married folks or harass them, but they can hit on them. They do not need to respect any marital bond.

Have our legislators and judges actually said these things? They didn't need to. Their actions said it.

They have argued that, historically, the rights to sue for "criminal conversation" and "alienation of affections" have been rights given only to husbands, not wives, to protect the men's quasi-property interests in their wives. In other areas of law, the "fix" has been to extend historical rights to women, rather than to abolish the right for individuals of both genders.

They have argued that these rights to sue do not preserve marriages because they are brought after the harm has been done and the marriages have failed. But they do not discuss the deterrent effect such rights provide. We have not repealed the law against murder because the law did not keep the victims from being murdered. We have not repealed the law against breach of contract because having the law on the books did not maintain the contract. In addition, our laws in other areas provide not only actions for damages but also the chance to seek injunctions before the harm is done and has succeeded in a complete rupture. We should modernize our laws on marriage to allow injunctive relief.

In a similar way, legislators and judges have argued that these suits involve marriages that were failing -- and the proof is that the intruders succeeded. In other areas of law, we would easily dismiss such an argument. The law does not distinguish between strong contracts and weak ones to determine which ones to protect and which ones to not protect.

The legislators and judges have argued that juries have no means by which to set damages. Again, this is any easy fix. In other areas of law, the legislatures provide juries with guidance. For example, a legislature could instruct juries to compensate victims of homewrecking by the price of the median value of a home. Our legislatures should provide guidance to juries on the monetary value of the wrongful death of a marriage. Legislation should include giving the plaintiff-spouse money obtained from the intruder's celebrity. (Remember the Son-of-Sam laws?)

Our laws protect businesses from "tortious interference with advantageous relations," that is, from the actions of party that would keep a business from entering into a contract or encourage the breaking of a contract. Our laws allow a sports team to sue for interference with its contract with its player. Our laws prohibit people from enticing members of the armed services to desert. Why should our laws treat married persons with less respect than BP, the Yankees, or the U.S. Navy? Why should our laws treat married persons like they were athletes without a contract -- free agents?

In the published reports of lawsuits involving interference with marital relations, not all of them involve sexual relations. Sometimes family members have been sued for destroying a marriage through constant disparagement of a spouse.

There are additional situations in which married persons could use lawsuits. A married person should be able to sue individuals who interfered with a marriage to gain commercial advantage. They should be allowed to sue prostitutes and their pimps, mistresses and gigolos, pornography websites, and dating websites that do not screen out married persons. The wife of former Governor Eliot Spitzer should be entitled to sue his prostitutes and their pimps to recover the more than $80,000 he reportedly paid them.

A husband should be able to sue a man, infected with a sexually transmitted disease, who has engaged, or has attempted to engage, in intercourse with his wife. Moreover, a wife should be able to hold persons liable for interfering with marital relations for selling drugs to her husband, or for feeding his gambling addiction if the drugs and gambling deprived her of his care, comfort, society, or consortium. (Precedents for such legislation include the Hugh O'Connor Memorial Laws, named after the son of actor Carroll O'Connor, and adopted by several states since the late 1990s. The laws allow family members to sue those who provided drugs to their loved ones.)

If we want a tool to protect individual marriages, and all marriages, weak and strong, then we can develop modern legislation on the interference of marital relations based on the historical causes of action known as "criminal conversation" and "alienation of affections" and on the ideas presented here.

(Mr. Thunder is working to develop a national conference on this issue. He can be reached c/o William Duncan, duncanw@marriagelawfoundation.org.)

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About the Author
James M. Thunder is a Washington, D.C. attorney.