Should Spouses Be Able to Sue Their Mates' Lovers?

Back when women were considered property, there was a set of laws on the books called "heart balm" torts. Meant to protect the family unit from interlopers, these Victorian-era statutes gave men the right to sue anyone who seduced their wives. The terms at the time were "criminal conversation," which meant adulterous sex, and "alienation of affection," which could be anything that destroyed the love between husband and wife.

But perhaps recognizing that the threat of public humiliation and financial penalty hasn't ever been all that effective in deterring adultery—just ask John Edwards and Tiger Woods—most of the country got rid of these laws in the 1930s.

But not North Carolina. It is one of seven states (along with Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah) that seem to cling to the idea that morality and matters of the heart are the province of the courts. They also seem to think it's a good idea to give divorcing spouses another legal weapon with which to bludgeon each other, and anyone else nearby, even though those who have gone through a divorce can tell you even the most rational people become clinically insane during the process. Hell, people going through a divorce should be kept away from sharp objects and the good china, never mind allowing them to legally exact revenge on the hussy or predatory playboy whom they see as causing their heartbreak.

While the alienation-of-affection laws have been used by men to sue their wife's male lover, today they're more often used by women to go after mistresses. That's how Cynthia Shackelford, 60, a former teacher, recently won a mind-boggling $9 million judgment against Anne Lundquist, her husband's lover, whom she accused of "alienation of affection" that resulted in the end of her 33-year marriage.

Denying that this was a case of revenge, Shackelford insisted March 23 on CBS's The Early Show that her intent was to deter so-called home wreckers. "My main message is to all those women out there who might have their eyes on some guy that is married, to not come between anybody,'' she said. Perhaps for Shackelford it truly wasn't about the money, but the motherly-looking Anne Lundquist isn't likely to come up with millions of dollars on her salary as a dean of students for a small college. But nonetheless, a moral case was made and the jury ruled in favor of the wife. Lundquist is appealing the judgment.

And lest you think this was an isolated case, take note that several hundred like it are filed in North Carolina each year, though not all are won, and very few have such spectacular awards of damages. Local divorce attorneys advertise their familiarity with the law on their Web sites. (For the record, there are several divorce lawyers' associations in the state that have come out for an end to the laws.) The law was even invoked recently by John Edwards's former political aide Andrew Young, who claimed that Elizabeth Edwards threatened to use it to sue him for helping her husband carry on an affair with Rielle Hunter.

Try contemplating that courtroom for a second. In addition to being a media circus, it would put the bitter tragedy that happens when a relationship begun in love ends in rancor under a microscope even more than an ordinary divorce. That's because these laws force each side to prove or disprove whether there was still love and affection between the spouses when the interloper invaded and caused the "alienation." So what you get is an examination of exactly when a marriage died, when it passed that point of no return, and who was to blame for pushing it over that line.

In these cases, the plaintiff has to prove that love was still there when the affair began. So a wife might cite the fact that he called her his better half in public, that they kissed every morning, that they still had sex, that they talked about growing old and watching the grandkids together—a conversation that Cynthia Shackelford mentioned in her defense. And a husband could say he and his wife never had sex, that they started taking separate vacations together, that she wasn't the first person he called when something went wrong at work because she wouldn't understand, that they lived separate lives.

Should that kind of emotional autopsy be public? Most people would say no, but even if the old laws get repealed, we won't stop looking for proof of who's in the right when it comes to romantic disputes, not in a society that's increasingly oblivious to privacy. Couples are fighting it out on Facebook, exchanging romantic salvos via status updates, and actually hoping their friends weigh in. And others are going on TV in the hopes that Alec Baldwin will tell them whose fault it is that the marriage is in trouble.

The problem is, of course, that being right doesn't buy you happiness.