Historically, you could sue your cheating spouse’s lover. Although cheating comes up in divorce, suing your spouse’s lover is a different cause of action. In Florida, a man is now arguing that these laws violate his Constitutional right to engage in intimate sexual activity, speech, and expression with other consenting adults.
Alienation of Affection
American law used to recognize the tort of “alienation of affection” — causing a woman to lose affection for her husband and often to leave the husband because of the cheating lover.
The law also recognized the tort of “criminal conversation,” which basically consists of suing someone having adulterous sex with your spouse.
Many people think heart balm laws are dead. But a few states — Hawaii, Mississippi, New Mexico, Florida, South Dakota and Utah — still recognize them.
In Florida, Marc and Amber were a married couple. Amber is a nurse. The Defendant, Derek, is a medical doctor at the hospital where Amber works.
In early 2015, Derek and Amber began a sexual relationship. Marc discovered Amber was cheating on him with Derek, and sued Derek for alienation of affection and criminal conversation.
Derek tried to dismiss Marc’s lawsuit on the ground that Florida’s common law causes of action for alienation of affection and criminal conversation are facially unconstitutional.
The trial court agreed with Derek, and granted his motion to dismiss. Marc appealed the decision.
Florida’s Heart Balm Statutes
I’ve written about heart balm statutes before, especially as they relate to engagement rings.
These common law torts are commonly referred to as “heart balm” statutes, because they permit the former lovers’ heartaches to heal without recourse to the courts.
The purpose of the heart balm statutes was originally to prevent the perpetration of fraud by litigants who would use the threat of a breach of promise of marriage to force defendants to make lucrative settlements in order to avoid embarrassing publicity.
The Florida heart balm statute, originally passed in 1941, abolishes common law actions for alienation of affections, criminal conversation, seduction, and breach of contract to marry.
The Florida Legislature found that those who break engagements may be “free of any wrongdoing … [and may be] merely the victims of circumstances.”
The preamble declares it to be Florida public policy that the best interests of the people of the state are served by the abolition of the breach of promise action.
Back to Florida
Surprisingly, the Florida appellate court reversed the trial court, and found that the statute was not unconstitutional:
Our holding is neither an endorsement nor a critique of these “heart balm” torts. Whether this Court believes these torts are good or bad policy is irrelevant; we cannot hold a law facially unconstitutional because it is bad policy.
These common law torts are facially valid. They further the State’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken.
Simply put, these torts are intended to remedy harms that result when marriage vows are broken, not to punish intimate extra-marital speech or expression because of its content.
The Florida appellate court opinion is here.