by Miguel Cruz
A couple of years ago, Chris and I had a little debate over a person that we know who hooked up with the spouse of another individual while they were still married. Chris’ opinion was very strongly held. The person in question was a bad person and a thief. I’m not entirely sure if Chris’ feelings were based on an entrenched personal philosophy or if it was a special case based on the nature of his relationship to this person: “I really hate this person. And you know what? They quite often go a couple miles over the posted speed limit!”
So the basic controversy in our discussion was whether having an affair with someone else’s spouse amounts to a theft. My own opinion is that it does not. The law in most states (43 of them) is that it isn’t. But there are 7 states that have a legal principle in place known as alienation of affection. A jilted spouse can recover money from a third party if they generally can show three things.
(1)The spouses were in love
(2)The spouses’ love was destroyed
(3)The defendant’s malicious acts caused the loss of love
Last week, a jury in North Carolina awarded $9 million to the wife of a guy who was having an affair with another woman. If this law had been in place in Texas, the person Chris and I were talking about could have been sued. For that matter, I could have been sued by Chris’ first ex-wife (Not because we were fucking, you assholes. That didn’t start happening until after the divorce was finalized) because you don’t actually have to be sleeping with someone to be held liable for alienation of affection. People who have recommended a divorce like family members and counselors have been sued. Chris’ first ex-wife believes that since I let Chris hang out at my house all the time then I caused their marriage to fail.
The problem I have with this line of thinking is that it presupposes that a person has some kind of property interest in their spouse. It goes against the basic right of freedom of association. I can be friends with whoever I want and what we do, as long as there is no obvious harm to anyone else, is our own business. Now the counterargument to that might be that the spouse being cheated on is hurt by the infidelity. But why does the fact of the marriage grant a special position to the innocent spouse? Do Nathan and Chris not realize how hurt I am by Chris’ friendship with Nathan? Chris’ love used to belong to me, but he would rather drive all the way to Rhome (if you want to) to hang out with him than come visit with me. What if the couple isn’t married? Does that infidelity somehow sting any less? What if your significant other is simply tired of you and wants to break up? That hurts too.
The second problem with this line of thinking is that it takes the position that the cheating spouse is completely incapable of making his or her own decisions. When I steal a DVD like I did with Jonas Brothers: The 3D Concert Experience (the Don’t Look Back of the 2000s) at Best Buy last week, the DVD has no choice in the matter. It is neither alive nor sentient. A cheating spouse on the other hand is.
The marriage is the responsibility of the two people involved in it. If one of the spouses does things that will foreseeably lead to a divorce, that’s on the spouse who decides to do those things. It is irrelevant that the mistress might have provided some kind of temptation. Unless the mistress is also a rapist, the cheating spouse is the one who decides whether or not to act on that temptation.
But that’s my opinion. If you happen to live in Hawaii, North Carolina, South Dakota, Utah, Mississippi, and New Mexico you better make damn sure your boyfriend/girlfriend isn’t married and that you don’t have a lot of money to make you a worthwhile target of a lawsuit.