In most of the United States, you cannot sue someone for breaking up your marriage. As of 2026, only five states still allow a jilted spouse to bring a civil lawsuit against the third party who interfered: Hawaii, Mississippi, North Carolina, South Dakota, and Utah. These claims, known as heart balm torts, go by names like alienation of affection and criminal conversation, and where they survive, juries have handed down verdicts in the millions.
Where You Can Still Bring the Claim
The map is short, and it matters more than any other fact in your case. If you don’t live in one of these states (and the conduct didn’t occur in one), no amount of evidence will support the lawsuit.
- Hawaii: Recognizes alienation of affection through common law. An unhappy marriage doesn’t bar the claim, though it may reduce damages.
- Mississippi: Recognizes both alienation of affection and criminal conversation through common law.
- North Carolina: By far the most active state for these cases, with an established plaintiffs’ bar and a specific statute governing procedures for both causes of action.1North Carolina General Assembly. North Carolina Code GS 52-13 – Procedures in Causes of Action for Alienation of Affection and Criminal Conversation
- South Dakota: Recognizes alienation of affection through case law. The plaintiff must show wrongful conduct, loss of affection, and a causal connection between the two.
- Utah: Recognizes loss-of-consortium claims against third parties by statute.
Two states that once appeared on this list no longer do. Illinois repealed its alienation of affection and criminal conversation laws effective January 1, 2016. New Mexico’s Supreme Court abolished the tort in early 2026 in Butterworth v. Jackson, calling the cause of action “inherently dehumanizing” and inconsistent with the state’s no-fault divorce framework. North Carolina has seen recent legislative proposals to end its claims as well, though none had passed as of mid-2026.
In every other state and the District of Columbia, these lawsuits are not available.
The Two Claims and What Each Requires
Where heart balm torts survive, they typically come in two flavors. They are related but legally distinct, and the proof demands are very different.
Alienation of Affection
This claim targets a third party who destroyed the love in your marriage. The defendant doesn’t have to be a romantic rival. Courts have allowed claims against in-laws, close friends, and even clergy who deliberately drove a wedge between spouses.2Legal Information Institute. Alienation of Affection The harm is to the marital bond itself, not to anyone’s sexual exclusivity.
To win, you generally have to prove three things:
- A marriage with genuine love and affection existed. Not a perfect marriage, but a real one. Photographs, messages between spouses, and testimony from friends and family all help.
- That love was destroyed. Separation, divorce filings, or a dramatic shift in your spouse’s behavior supports this element.
- The defendant caused it. Most claims live or die here. The defendant must have actively worked to pull your spouse away, not merely been a passive recipient of their attention.2Legal Information Institute. Alienation of Affection
When sexual intercourse between the defendant and your spouse is proven, courts often presume malicious intent. Without that, you’ll need other evidence that the defendant acted with the purpose or foreseeable effect of ending the marriage.
Criminal Conversation
Despite the name, this is a civil claim, not a criminal charge. It is narrower than alienation of affection and easier to prove when the facts fit. You need to establish only two things: that a valid marriage existed, and that the defendant had sexual intercourse with your spouse during the marriage.3Legal Information Institute. Criminal Conversation Tort You do not have to show that any love was lost or that your marriage was damaged. The violation of exclusive sexual rights within the marriage is the entire basis of the claim.4Justia Law. Sebastian v Kluttz
Direct proof of intercourse is rarely available, so courts allow circumstantial evidence. Showing that the defendant had both the romantic inclination and the opportunity (overnight stays, intimate messages, testimony about the nature of the relationship) can be enough to support the inference.
Evidence That Carries the Case
Digital records have become central. Text messages, emails, social media posts, and phone records showing frequent contact between your spouse and the defendant carry significant weight. Authentication matters, though. A screenshot with no context, or one that could have been altered, may not survive a challenge in court; metadata and original files hold up far better.
Beyond digital evidence, hotel receipts, credit card statements showing gifts, financial transactions, and eyewitness testimony all contribute. Private investigators are commonly hired to document patterns of contact and overnight visits, with hourly rates generally running from $75 to $500 depending on location and complexity.
Defenses You Should Expect
The third party you sue will have several arguments available, and some of them are strong.
The marriage was already over. This is often the most effective defense. If spouses were already unhappy, sleeping separately, or discussing divorce before the defendant came along, there was no affection left to destroy. North Carolina’s statute explicitly bars claims based on conduct that occurred after the spouses physically separated with the intent that the separation be permanent.1North Carolina General Assembly. North Carolina Code GS 52-13 – Procedures in Causes of Action for Alienation of Affection and Criminal Conversation
No active interference. The defendant must have done something affirmative. Simply being the person your spouse developed feelings for, without encouragement or pursuit, is generally not enough.
Ignorance of the marriage. For criminal conversation, not knowing your spouse was married is generally not a complete defense. Courts have held defendants liable even when they were genuinely unaware. However, that ignorance may reduce the damages a jury awards.
Statute of limitations. These claims have filing deadlines. North Carolina imposes a three-year limit measured from the defendant’s last act giving rise to the claim.1North Carolina General Assembly. North Carolina Code GS 52-13 – Procedures in Causes of Action for Alienation of Affection and Criminal Conversation Other states apply their general personal injury limitation periods, typically two to three years. Miss the deadline and the claim is dead regardless of its merits.
What You Can Actually Recover
A successful plaintiff can recover compensatory damages for emotional distress, humiliation, loss of companionship, and loss of a spouse’s financial support. Awards vary dramatically because these harms are inherently hard to quantify.
Punitive damages are available on top when the defendant’s conduct was particularly egregious. They are meant to punish, not to compensate, and they are where the headline numbers come from. In a 2018 North Carolina case, a jury awarded $2.2 million in compensatory damages and $6.6 million in punitive damages against a man who had an affair with a married woman.
Collecting is a separate problem from winning. Most individuals don’t have millions in accessible assets. A defendant can appeal, negotiate the figure down, or in extreme cases file for bankruptcy. The gap between what a jury awards and what the plaintiff actually sees can be enormous.
Before You File
Court filings are public records. Your marriage, the affair, and intimate details of your relationship will become accessible to anyone who looks. For people in small communities or public-facing careers, that exposure creates its own kind of damage.
Costs add up quickly. Civil filing fees typically range from $75 to several hundred dollars depending on the jurisdiction and the amount sought. Attorney hourly rates for civil litigation commonly run $150 to $400 or more. Some attorneys will work on contingency, taking a percentage of the recovery, but that arrangement is less common for heart balm claims than for personal injury cases. Investigator fees, forensic evidence collection, and expert witnesses add more.
One structural limit worth knowing: North Carolina’s statute allows the lawsuit against natural persons only, so you cannot sue a company or organization.1North Carolina General Assembly. North Carolina Code GS 52-13 – Procedures in Causes of Action for Alienation of Affection and Criminal Conversation
Finally, the heart balm claim is legally separate from your divorce, but the two can collide. Evidence gathered for one often matters in the other, and proof of an affair may factor into alimony in states where marital fault affects spousal support. Watch the release language in any divorce settlement: a broad waiver of tort claims drafted carelessly can jeopardize a heart balm case you haven’t yet filed. The claim is against the third party rather than your spouse, so a divorce release doesn’t automatically extinguish it, but it can create complications worth sorting out with counsel before you sign anything.