Should You Be Able To Sue Your Spouse’s Mistress?

Here’s an interesting article from Vicki Larson about tort (personal injury) laws in some states that would allow a spouse to sue their spouse’s mistress (or mister) for the emotional harm and suffering the affair has caused them.  To be fair, the (possible) laws are only on the books in seven states while in another 16 states adultery is illegal, but William Corbett, an LSU law professor – and someone I knew professionally while I was a professor at LSU – argued that there were several torts available that might give spurned spouses some redress for the mental suffering they experience when their spouse has an affair.

The point, Corbett argues, is not that such laws would save marriages, per se.  But as he points out, tort law has many policy goals – one of which might be deterrence, or trying to stop a particular type of behavior – but others of which might well be compensation for suffering/injury, revenge, and punishment.  These types of laws – and their application in the adultery context – are an interesting way of seeking to serve these latter goals of the tort system.  Deterrence could be one additional factor.

Let’s be clear…these laws are likely not to apply in California but that does not stop California tort and divorce attorneys from thinking through ways in which they might apply to a particular set of circumstances.  It also helps the spurned spouse cope with the idea that their partner stepped outside of the relationship.  Sometimes it just help to know that others not only have the same feelings, but that in some places they have actually created laws on the books to deal with those feelings.

By the way, breaking the marriage contract – or the promise of a marriage contract (i.e., the promise to marry) – was an action that sounded in contract law in many jurisdictions including our common law cousins in the British Isles until more recently than most would have thought.  And given the huge cost of planing a wedding, often at least by tradition, borne by the bride to be, there are a number of states (OK a few, like Georgia), that will treat a promise to marry contract like any other contract and will consider a case of cold feet or jilted bride to be a breach of contract action and let the bride recover for the costs of the wedding planning.  AND, some states require the jilted bride to give back the wedding ring, but Georgia is among other states that does not consider it a conditional gift and lets the spurned bride keep the ring.

OK, getting back to reality.  In most instances in California, adultery – whether seeking compensation or revenge or punishment – will not create a cause of action in tort law.  Likewise, breaking an engagement will likely not create a cause of action for breach of contract.  But as the laws on the books in 7 states in the first instance and some number of (mostly southern) states in the second instance indicate, if you have been in the situation before, it certainly does seem enticing to make the other person pay for the suffering they have caused.

On the bright side, in the case of the broken engagement, you won’t likely be calling on folks like me to represent you in a divorce action in a few years.  In the case of the adulterous spouse, California has no-fault divorce, meaning you can seek a divorce without having to relive all the gory details of the affair – just quietly file suit, get half of everything and walk away clean with a fresh start.