Paying for affairs

Posted: Tuesday, March 30, 2010

The following editorial appeared in the Los Angeles Times:

If you're going to have an affair, don't do it in North Carolina. For that matter, don't mess around in Hawaii, Illinois, Mississippi, New Mexico, South Dakota or Utah either. These states have laws on their books that date back to the time when wives were considered property - and woe unto he or she who steals chattel so dear. Just ask Anne Lundquist.

Lundquist was dean of a private school in North Carolina when she became entangled with Allan Shackelford, a married lawyer. Shackelford separated from his wife of 33 years and the two moved to New York, where Lundquist is now dean of students at a small college. In 2007, she was slapped with a lawsuit for "alienation of affection" by Cynthia Shackelford, and last week the verdict came in: The jury awarded $9 million to the spurned wife.

"I don't have a lot of money, so where this $9 million comes from is kind of hysterical," Lundquist told reporters after hearing about the judgment - she hadn't attended the trial, nor was she represented by a lawyer, perhaps because she hadn't taken seriously the pre-enlightenment notion that the "other woman" could be held financially liable for the breakup of a marriage. But it's a serious matter in North Carolina. About 200 alienation-of-affection suits are filed in that state every year, and although the $9 million Shackelford verdict could be the highest award ever in such a case, seven-figure payouts aren't unheard of.

Alienation of affection is a relic of British common law, originally applying only to wives but now covering spouses of either sex, that most states disposed of long ago. If a third party causes the breakup of a marriage, he or she can be sued, even if it's not the result of an adulterous affair; a minister, therapist or friend who advises or enables a split could be dragged into court. In fact, Elizabeth Edwards, wife of former North Carolina Sen. John Edwards, reportedly threatened an alienation-of-affection lawsuit against her husband's former aide, Andrew Young. According to ABC News, Young, who tried to cover up John Edwards' extramarital affair and recently published a book on the scandal, received a threat from Elizabeth Edwards that she would take him to court unless he stopped talking to the media about the Edwards' marriage.

Divorce cases tend to be messy enough, but such suits make them even uglier, further rending families and opening the door to court-sanctioned harassment. Moreover, most people would accept that the true guilty party in an adulterous relationship is the one breaking his or her marriage vows, but this law implies otherwise - as if the lover of a married person owed something to the spouse. That makes sense to many social conservatives, who hold the sanctity of marriage absolute, but to us it seems hopelessly outdated. Or to put it in Shakespearean terms, which seems appropriate given the provenance of this tort, "These oaths and laws will prove an idle scorn."

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