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    Alienation of Affection

As common law, alienation of affection was a tort action brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors and therapists or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affection.

Alienation of affection was first codified as a tort by the New York state legislature in 1864, and similar legislation existed in many U.S. states in the late 19th and early 20th centuries. Since 1935, this tort has been abolished in 42 states. Alienation is, however, still recognized in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah. An action for alienation of affection does not require proof of extramarital sex. To succeed on an alienation claim, the plaintiff has to show that:

  1. the marriage entailed love between the spouses in some degree;
  2. the spousal love was alienated and destroyed; and
  3. defendant's malicious conduct contributed to or caused the loss of affection.

It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim where it can be shown that defendant did not know that the object of his or her affections was in fact married. It is not a defense that the non-innocent spouse consented to defendant's conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional conduct. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating affection between the spouses.

South Dakota is one of the few states that protects the marriage relationship form intentional, outside interference. The elements of the tort of alienation of affections were identified by the South Dakota Supreme Court in Pearsall v. Colgan, 76 NW2d at 621 (SD 1956). In Pearsall these elements were identified as:

  1. wrongful conduct of the defendant;
  2. loss of affection or consortium; and
  3. a causal connection between such conduct and loss.

Although the law is somewhat controversial, the South Dakota Supreme Court and the South Dakota Legislature have continually up held the law over the years and have resisted attempts to abolish the law.

In justification of the law, South Dakota Supreme Count, Justice Francis Dunn eloquently stated in Hunt v. Hunt, 309 NW2d 818, 823 (SD 1981):

It is one thing to abolish an action in tort which is void of defenses and unjust. It is quite another to abolish a long-standing legislative and judicial intention to preserve the sanctity of marriage by providing a civil remedy, and where reasonable and just defenses are available to a defendant . . . I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the inured party.

Mr. Christenson was the lead counsel in the case Jones v. Swanson, 341 F.3rd 723 (8th Cir. 2003), wherein a jury awarded the largest verdict ever awarded in the State of South Dakota for a alienation of affection claim.