Thinking About Breaking Up a Marriage? It Could Cost You.
Mississippi plumber Johnny Valentine and his wife Sandra Day wed in 1993 and didn’t enjoy the happiest of marriages. Mr. Valentine was a drinker and gambler who showed no signs of changing no matter how many times the missus threatened to leave. In 1998, an unhappy and fed up Ms. Day began having an affair with her boss, Jerry Fitch, a wealthy oil and real estate businessman.
The following year, Ms. Day gave birth to a baby girl whom Mr. Valentine assumed was his daughter– until he didn’t. Seven months after the little girl was born, Mr. Valentine took a paternity test. He’d been right to be suspicious; the girl was Mr. Fitch’s child. Ms. Day continued adulterous relationship with Mr. Fitch, and Mr. Valentine filed for divorce.
Shortly after that, Mr. Valentine brought another suit – this time, against Mr. Fitch – essentially accusing him of stealing his wife. Mr. Valentine won, and earlier this year, the Supreme Court of Mississippi affirmed the jury verdict against Mr. Fitch including $754,500 in compensatory and punitive damages– plus 8 percent annual interest.
Mr. Fitch’s big payout to Mr. Valentine came courtesy of Mississippi’s common law tort of alienation of affection.
LASIS wasn’t even aware that such a law, even if on the books, could still being litigated in today’s courts. It may not be nice to have an affair with someone married but how the heck can it be illegal? We were intrigued, and investigated.
Only eight states still recognize some form of the original “heart balm” torts that include alienation of affection (interfering with a marriage), criminal conversation (sleeping with a married man/woman), seduction, and breach of promise to marry. (The states are: Illinois, Hawaii, Mississippi, North Carolina, New Mexico, South Dakota, and New Hampshire). So – no Ashley Madison happening in these states, we’re guessing.
Heart balm laws date back to a time when a woman was considered the property of her husband, and any cuckold could sue and seek damages against the man who interfered with, or stole, his property. It didn’t work both ways. A woman with an unfaithful husband had no legal recourse or right to bring any of these claims.
Today, these old fashioned laws are used by men and women alike. (We’ve come a long way, baby?)
Let’s look more closely at an ongoing case involving a heart balm statute.
Last year, Melissa Oliver, sued Veronica Filipowski for breaking up her marriage. The North Carolina Court of Appeals recently denied a motion to dismiss, and Ms. Oliver is appealing.
Ms. Oliver argues that that her fundamental rights to privacy and free speech were violated because North Carolina is trying to regulate adult, consensual sexual conduct. In other words, says Ms. Oliver, the law is unconstitutional.
The case Ms. Oliver bases her argument on is Lawrence v. Texas, decided by the Supreme Court in 2003. The Court struck down an anti-sodomy criminal law, holding that the due process clause of the 14th amendment prohibited government intrusion into “personal and private life of the individual.”
Proponents of North Carolina’s heart balm laws interpret Lawrence narrowly, arguing that the case merely prohibited states from criminalizing consensual homosexual conduct.
And the Filipowski case, these folks say, involves heterosexuals, and furthermore, the sex was not entirely consensual – just ask Mrs. Filipowski.
The contrary argument, of course, is that the Supreme Court didn’t frame the Lawrence issue narrowly at all; indeed, the Court broadly stated that sexual behavior is “a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of the persons to choose without being punished.” And further, such behavior is protected by the 14th amendment.
After the Lawrence decision, several states, including Virginia, adopted the Court’s reasoning and overturned the state’s anti-fornication law that criminalized sex between unmarried persons.
But North Carolina is resisting peer pressure, standing firmly behind its alienation of affection and criminal conversation laws. There was a time when it seemed willing to relent. In 1984, the state Court of Appeals struck down the law. In a one-page opinion, the state’s Supreme Court overturned the ruling, and reminded the Court of Appeals that it did not have authority to strike down the higher court’s precedent.
The North Carolina General Assembly has tried to get around the courts and abolish these arcane torts through legislation, but none of the bills were ever ratified and the torts remain intact, though with some new limitations.
We’re still shocked these laws still exist. According to Mrs. Filipowski’s lawyer, the heart balm laws are important, because state has an interest in protecting the sanctity of marriage.
The following fact can cut both ways: North Carolina has one of the highest divorce rates in the country. Are the heart balm laws are making no difference at all? Or do they lead to many, many North Carolinians getting divorced rather than just cheat on their spouses?
Either way, the laws don’t make sense to us.