How2Day: Virginia Laws on Alienation of Affection

Alienation of affection is a tort, or civil wrong, recognized in some states. Where recognized as a cause of action, alienation of affection allows a married person to sue a third party for money damages based upon willful or malicious interference with the marriage relationship. Though not limited to cases of adultery, this type of claim is typically used as a way to extract compensation from a spouse's lover for damages caused. Virginia has codified its view of alienation of affection in statute.

Alienation of affection has been abolished in Virginia by statute since 1950. Section 8.01 A of the Virginia Code specifically reads, "no civil action shall lie or be maintained in this Commonwealth for alienation of affection." The same section of the Code also abolishes the torts of breach of promise, criminal conversation and seduction.

In 1985, the U.S. Court of Appeals for the Fourth Circuit, which hears appeals from the federal district courts of Virginia, ruled that an individual could recover against a third person for interference with a marriage under a theory of intentional infliction of emotional distress, despite the abolition of alienation of affection. Though not binding on Virginia courts or legislature, this decision was interpreted to be the law of the commonwealth until 2000. In McDermott v. Reynolds the Supreme Court of Virginia expressly disagreed with the federal circuit and found the intent behind section 8.01 of the Virginia Code was to prevent liability for acts on the basis that they caused harm to a marriage. Since 2000, the law of Virginia has indisputably been that a spouse may not sue a third party for intentional infliction of emotional distress if the basis for that distress is harm to their marriage.

Though you cannot sue for alienation of affection in Virginia, other options may be open to you. You may be able to sue your spouse's lover for intentional infliction of emotional distress if there is a basis for the claim independent of the harm to the marriage. You may be able to sue in federal court and apply the law from another state that allows alienation of affection or intentional infliction of emotional distress if the third party lives such a state. In some instances you might be able to bring your claim as a resident of neighboring North Carolina, where alienation of affection is recognized, if you are domiciled in the state and/or if a significant amount of the harm to the marriage occurred in that state.

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