When George Berg's wife, Sandra, began spending three nights a week studying for an MBA, he didn't mind. But when the manager of the family's Myrtle Beach time share called two years ago to say someone left behind a Blockbuster video card--during a weekend when Sandra was supposed to be away at a company event with their son--George got suspicious. Asking his 5-year-old about the trip, he made a heartbreaking discovery. "I asked him. 'You went with Mommy's [female] boss?' He said 'No, I went with Mommy's gay friend from work'."
Using an arcane North Carolina law on "alienation of affection," Berg filed suit not against his ex-wife (they divorced earlier this year) but against the other adulterer. In August, they settled for more than $150,000, and in January Berg will begin receiving monthly checks.
While most states have for years been making it easier to get divorced by removing "fault" requirements like adultery, a few states have held on to "heart balm" statutes that allow people to recover damages for sexual indiscretions. Alienation of affection, which is still on the books in about seven states, originated from the idea that a wife is her husband's property and it is "based on the presumption--really, on the fantasy--that it's possible for one person to steal the affections of another," says John Hill Parker, a former district court judge in North Carolina.
Although alienation of affection is rarely invoked in most states, a series of high-profile judgments in North Carolina, including one in 2001 for $2 million, have inspired more than 200 suits annually in recent years. Lawyers say people typically file these claims as leverage in divorce and custody disputes. "A wife says I'm going to sue your girlfriend if you don't give me $50,000 more in property settlement. That's an improper use of the [law], and it shouldn't take place," says A. Doyle Early Jr., former chair of the North Carolina Bar Association's family law section.
For that reason, the North Carolina Bar Association wants the law removed; in 2003 such a bill passed in the House, but failed in the Senate. "No legislator wants to sponsor a bill that in effect legalizes adultery," says Lee Rosen, a board-certified family law attorney. Conservative groups like the North Carolina Family Policy Council say the law should stay on the books not only for its deterrent value but also because it provides an important legal remedy.
For Berg, holding someone accountable for the destruction of his marriage was the point. "I loved my wife more than anything in the entire world," he says. The law did its job, but it can't heal his broken heart.