My wife of 27 years had an affair over several months with someone at work. Of course this has put our marriage in Jeopardy, when I confronted the other man, he threatened me with restraining orders and claims to have filed a police report against me. Do I have any legal recourse to pursue, such as alienation of affection? I live in New Mexico.
State/Country relating to question: New Mexico
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How is the relationship with you and your wife now? Would she testify that this person "stole" her affection for you and that she was very happy with you before the affiar began?
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Hello,Actually she appears to be very remorseful and says she still loves me. She would say she loved me before, we've had a good marriage to this point, and certainly loved me less during the time of the affair. I thought she was just thinking about leaving. Are there other laws that apply?Tom
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Hi Tom! I was just informed that you could not see my responses to you in the Live Chat mode. So I have changed it to a different mode. I am reading your response now and will be replying to you in just a few minutes. Thanks!
Common Law, upon which most of American jurisprudence is based, recognized a cause of action for "alienation of affections." It was considered a "tort" or a civil wrongdoing for which the innocent party might seek monetary compensation. The act of alienation of affections was defined as " the wrongful or injurious act of interfering with an affectionate relationship so that one person loses affection for the other." Recognition of this damage claim arose from the concept that a wife was the property of her husband - I am just explaining the concept, not endorsing it - and, therefore, any action which drew the wife away from her husband was a taking of property for which damages could be recovered. In 1999, the Court of Appeals of New Mexico addressed a case involving both emotional distress and alienation of affection claims by a husband against an old friend. While the court's opinion focused on the tort of intentional infliction of emotional distress, or outrage, alienation of affections was not ignored. Instead, the Court of Appeals noted that our common law once recognized such a cause of action but it had been concluded, like many other states, the claim should be abolished. The court stated: "A spouse's love or a lover's companionship is not property that is subject to theft or trespass and plaintiffs in such suits do not deserve to recover for the loss of or injury to 'property' which they do not and cannot own."Under certain, very limited circumstances, it is possible that a claim by a spouse may lead to a sustainable damage claim against either the spouse or the suitor under the tort of intentional infliction of emotional distress, but it is hard to imagine a more clear statement that the old theory of "alienation of affections" itself will not be recognized as the basis of such a claim in New Mexico.
Unfortunately, there are no other laws besides the two mentioned above on which you could file any claim against this other party. I wish I had better news for you as I am very much for the alienation of affection laws and punishing any party who would intrude upon a marriage--be it a happy one or otherwise. Perhaps the fact that the courts are doing away with these types of laws or just not recognizing them altogether is more of a reflection of an immoral society than it is anything else. That being said, you can still bring a lawsuit against this person for the alienation of affection and/or intentional infliction of emotional distress. It would probably be dismissed, but it would stay on his public records forever.
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Family Law Attorney
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