The old law on marriage breakdown is still in the SD law books: despite the controversy, cases of “alienation of affection” still occur


Even as centuries have passed and society has generally removed the notion of a wife as property, the state of South Dakota has kept a version of this civil law on the books.

The state is one of seven states in the United States to retain the civil action known as “alienation of affection” in state law.

An element of the offense was argued in the South Dakota Supreme Court in October, although the case is unlikely to result in the law being struck down in the state.

Meanwhile, a long-term controversy continues to rage in South Dakota’s legal and legislative communities over whether the law is an appropriate way to resolve disputes over the involvement of third parties in marriage breakdown and whether financial damage should be rewarded accordingly.

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Business usually surrounds marriages between well-heeled people that are worth pursuing when an affair occurs and a marriage ends. A man was awarded $ 950,000 in a 2002 case in which a South Dakota jury ruled that an orthopedic surgeon in Las Vegas had lured the man’s wife into an affair and ended their marriage. The judgment was then reduced to $ 400,000.

A small number of alienation cases remain active in the state. Tort language was expanded to be gender-neutral by the state legislature in 2002 by allowing women to sue another woman who robbed her husband.

Opponents of the offense of alienation argue that it treats people like a commodity, puts a price on emotion, and leads to humiliating public disclosures of infidelity that can harm the adults and children involved far beyond the impacts of ‘a typical divorce proceeding.

Roger Baron, professor emeritus at the University of South Dakota School of Law, said the tort of alienation was not necessary because divorce laws already made it possible to determine fault and assess remedies financial.

“It’s kind of a mess, and it continues to be a mess,” said Baron, author of the legal textbook “Cases and Materials on Family Law for the South Dakota Lawyer.” “Just because something bad has happened to someone in life doesn’t mean you have a reason to sue them. “

This view is countered by experts who argue that marriage is a legal contract like any other agreement that can be broken and result in damages when someone gets involved.

Sioux Falls attorney Robert Christenson, one of the state’s leading advocates for alienation of affection, argues that cases of alienation can be treated with dignity and serve as a means for a spouse whose marriage is broken to be financially compensated for the loss of love, companionship and expected income. .

“When you have a car accident on your way home and you have pain and suffering and you can’t take the pain emotionally, it’s no different than that,” Christenson said. “In our system, we compensate for losses with money. We don’t compensate for a person, we compensate for a relationship, a feeling of love and affection that is taken.

Christenson said that cases of alienation also provide healing on the part of the rejected spouse whose life has been intentionally turned upside down by the actions of another.

The alienation of affection is part of a group of common English civil remedies known as the “balm for the heart” laws, most of which have been struck out of federal and state laws. The alienation, however, has been retained in South Dakota, Hawaii, Illinois, Mississippi, New Mexico, North Carolina, and Utah.

The three main elements that must be proven in an alienation case are that the marriage in question contained a degree of love or affection prior to the outer affair; that the affair alienated or destroyed this love or affection; and that the defendant’s malicious conduct contributed to or caused the loss of affection or love.

Jonathan Van Patten, a professor at USD Law School who has represented clients in alienation cases while in private practice, said the law essentially requires a plaintiff to demonstrate that a person who has had a bonding with a married person has exploited a situation and “intentionally established to” break or disrupt a happy marriage.

“It’s not like someone who is married is having an affair, you can be sued because the demands are much higher than that,” Van Patten said. “You really must have a smoking gun. “

An element of alienation from the affection was debated in the state’s Supreme Court in October. In the Cedar v Johnson case in 2017, a man from Frederick, SD, argued that his wife was stolen from him by the owner of the bar where she worked, which ultimately broke his marriage and led to divorce. A trial judge ruled that by failing to place firm financial value on his loss the plaintiff had not sought damages and dismissed the case. A decision on the case is expected in the coming months.

Over the years, South Dakota Supreme Court justices have both defended and expressed dismay at the Affection Alienation Act. Writing on behalf of the majority who upheld the law in the Hunt v Hunt case in 1981, then-judge Francis G. Dunn said the tort was relevant in the modern world to prevent attacks on the institution. marriage.

“I am sure there will be a case in the future where one party has so blatantly broken a stable marriage that we would regret the day an action for alienation was not available to the injured party,” Dunn wrote. .

However, in the same case, then-judge Frank “Rudy” Henderson drafted a scathing indictment for tort.

“The alienation of affection… as a remedy promotes bitterness, promotes vexatious prosecutions, uses marriage as a means of character blackmail and murder, markets marriage, and generally exposes marriage to one. public cleaning with a price tag attached to it, ”Henderson wrote.

Former State Senator Stan Adelstein, a moderate Republican from Rapid City, has made two attempts in his long legislative career to remove alienation language from South Dakota law. He failed both times.

“It’s a ridiculous law; the concept of putting a value on a woman, ”said Adelstein, 87, in a recent interview at his engineering firm’s office in Rapid City. “The concept that you’re going to get some payment for this woman to decide who she loves and then decide what she’s worth? “

While in the House of Representatives in 2002, Adelstein introduced a bill to repeal the law in South Dakota. The measure failed, but a committee revived the bill and changed its course, ultimately in a way that might make it more difficult to remove the law in the future.

In the amendments that were eventually passed, lawmakers made the law applicable to women and men who were lured away from their spouses. Adelstein said opposition to removing the law is based on the strong conservative beliefs of religious lawmakers.

“There is a reluctance among some lawmakers to allow people to behave in a way that they believe violates the Bible, and the feeling that marriage is a sacred institution and that anyone who interferes with it deserves to be punished,” Adelstein said. “It is a financial penalty for violating not a social or economic contract, but a religious contract.”

Adelstein said he plans to contact lawmakers ahead of the 2019 legislative session, possibly a female lawmaker, and encourage them to introduce a bill to end the alienation of affection from the law of the ‘State.

Yet Van Patten has said that at the moment he does not expect the legislature to eliminate the law.

“There is no lobby or active lobbyist for adultery, so it’s not like anyone wants to go out and take a risk and say this crime is too hard for adulterers,” he said. -he declares. “There is no policy that supports this, so it is likely that it will remain so for a while.”


Nancy I. Romero

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