Dear Jim (Duzak, Attorney at Love),
My husband and I are in marriage counseling because of an affair he had with a woman he used to work with (fortunately, she no longer works there). He insists that she came on to him first, and that he initially wasn’t interested but that she kept persisting and he eventually gave in. A friend of mine who saw them together at a bar when I was back East for a family visit tipped me off, and my husband admitted he had been seeing her for a couple of weeks. Although the counseling has been going fairly well, I’m still angry and hurt over the affair, and I don’t know if our marriage will ever be the same. My question is: can I sue this woman for the damage she caused to our marriage, or at least for the costs of the counseling? I think it’s wrong that she should walk away scot-free.
(“Angry” in Arizona)
The kind of legal action you’re referring to is called an “alienation of affection” suit. At one time, all fifty states allowed them, but over the years they’ve been abolished in all but seven states, and Arizona isn’t one of the seven. (For readers who might be curious, those seven states are Hawaii, Utah, New Mexico, South Dakota, Illinois, Mississippi, and North Carolina).
The main reason that alienation of affection is dying out as a legal concept is that it’s based on the notion that everything was just fine in the marriage until that no-good seducer or home-wrecker came along, and that the spouse who fell for that person’s charms had little or no culpability in the matter. But is that ever true? The reality is that affairs are almost always consensual. I’m not necessarily saying that the woman didn’t come on to your husband, but your husband decided at some point that he wanted her. The fact that he regrets his decision now doesn’t mean he didn’t have the ability to say no.
But it may be just as well that you don’t have the ability to pursue an alienation of affection suit.
For one thing, it would force you and your husband to testify about intimate details of your married life---before, during, and after the affair.