Alienation of Affections in Illinois: Strategy, Reform, and Unintended Consequences

My last post had me thinking about Illinois and mistakes, and this reminded me that Illinois is one of several states that recognizes the tort of alienation of affections.

I learned about this tort during my first year of law school in Eugene Volokh's torts class.  In one of his older Volokh Conspiracy posts, he lays out the elements of the tort and the situations that most commonly give rise to alienation of affections lawsuits:

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim. [I have corrected some punctuation discrepancies that appear to have been caused by the post's older coding.]

As Volokh goes on to note, the tort is still around in a number of states, including Illinois.  People continue to file alienation of affections lawsuits, indicating that the tort -- while seemingly archaic -- is far from dead.  Also at the Volokh Conspiracy, David Bernstein posts on why he teaches this tort in his torts class.

Illinois's formulation of the tort differs slightly from Volokh's description of the general elements, as no "wrongful" act by the defendant is required (meaning that meddling in-laws had better beware).  As the Illinois court of appeals stated in Orbeta v. Gomez, 733 N.E.2d 1287, 1289 (Ill. Ct. App. 2000):

A cause of action for alienation of affections consists of three elements: (1) love and affection of the alienated spouse for the plaintiff; (2) actual damages incurred by the plaintiff; and (3) overt acts, conduct, or enticement on the part of the defendant causing those affections to depart.

While Illinois is one of the states that allows parties to file alienation of affections lawsuits, the state has limited the scope of damages that plaintiffs can claim in such suits.  The Alienation of Affections Act (codified at 740 ILCS 5/1) bars punitive and aggravated damages in alienation of affections lawsuits and also states:

In determining the damages to be allowed in any action for alienation of affections, none of the following elements shall be considered: the wealth or position of defendant or the defendant's prospects of wealth or position; mental anguish suffered by plaintiff; any injury to plaintiff's feelings; shame, humiliation, sorrow or mortification suffered by plaintiff; defamation or injury to the good name or character of plaintiff or his or her spouse resulting from the alienation of affections complained of; or dishonor to plaintiff's family resulting from the alienation of affections. 

Despite this limitation, plaintiffs can still seek actual damages, and the tort lives on as a strategic option for those who are interested in aggressive divorce litigation.  Illinoisdivorce.com explains that while an alienation of affection suit may not result in a large monetary award, the lawsuit can still be used to wreak havoc on the life of an ex-spouse (I apologize for any offense caused by the source's overgeneralizations about gender):

Alienation of Affections lawsuits usually carry little financial value. Damages are limited to “actual damages,” there is no award for “pain and suffering” or “emotional distress.” Still, what they lack in finances they more than make up for in emotional impact and psychological power. For starters, they assume that the “stolen” spouse (almost always the wife) has no autonomy or decision-making ability. The stolen spouse is treated by the law as a piece of property and the jilted spouse is looked at as a property owner who has suffered a mere financial loss. That’s no surprise, of course, since the law harkens back to a time when wives were considered by the law to be their husband’s property. Second, an alienation of affections lawsuit necessarily throws a wrench in the lives of the runaway spouse and the paramour. If married, the paramour usually ends up divorced, too, as a result of the lawsuit’s publication of the affair and the messiness of the lawsuit itself. Subpoenas can be sent to employers, friends, unsuspecting spouses, etc. Likewise, the runaway spouse must bear the stress of knowing that all of the details of the infidelity are being made public in the court filings. Third, the testimony at such trials can be excruciating. The runaway spouse must listen to the detailed testimony of how the marriage had been built and about the mutual love and effort each spouse poured into the marriage. Then, the testimony turns to the lurid details of the affair: gifts, credit card receipts, getaway weekends, hotel registers and phone logs. It can be wrenching. 

As the case progresses, all of the stress and anxiety of a lawsuit is brought to bear on the adulterous lovebirds. The ugly testimony will have been heard. The lovers’ lives will have been turned upside down. The plaintiff will have accomplished his ultimate objective. 

Then, the coup de grace is delivered: the award of money damages: Remember that damages are limited to actual damages; that is, out-of-pocket losses. . . . [C]ases put a value on the stolen spouse: specifically, the lost income formerly contributed to the marriage and the costs of replacing the adulterous spouse’s non-monetary contributions to the household. For example, a stay-at-home mom who breached her marriage vows (the law views her as having been led away) must see her sacrifices and contributions to the marriage reduced to financial terms: like the cost of baby-sitters, a house cleaning service, grocery deliveries, laundry services, etc. The award of damages can be the most offensive, painful, and humiliating part of the case.

While the law of Illinois limits the scope of damages available in alienation of affections cases, the tort is alive and well, and may be used to devastating effect.  Moreover, as this passage shows, the statutory limitations on damages seem to make these suits even more humiliating to the departed spouse.

Given the tort's effectiveness at ruining the relationships of former spouses, its assumption of the departed spouse's lack of agency, and its archaic, sexist roots, I am inclined to agree with the majority of states that no longer recognize the tort of alienation of affections.

At the same time, however, Illinois is a good case study of how legislative attempts to curb the abuse and misuse of a tort may cause unintended harm to third parties.  While the defendants in these lawsuits may end up paying less, the low damage amount may humiliate the departed spouse.  The Illinoisdivorce.com post concludes by summarizing the outcome of an alienation of affections suit filed by the departed spouse's ex-husband, Arthur:

The jury awarded Arthur the paltry sum of $4,802.87 representing the value of his wife’s contributions to their marriage for a period of time. The wife said to the Chicago Sun Times “This law allowed him to put a price tag on me. That hurts more than anything”