You can sue the other woman for emotional distress only in a small group of states that still recognize what the law calls “heart balm” claims, and even in those states the case is hard to win. Everywhere else, courts have abolished these lawsuits, and the fallback option, intentional infliction of emotional distress, almost never succeeds when the underlying wrong is an affair. Whether you have a real claim comes down to which state’s law applies.
Where These Lawsuits Still Exist
As of 2025, roughly seven states still let a spouse sue a third party over an affair or the destruction of a marriage:
- Hawaii
- Illinois
- Mississippi
- New Mexico
- North Carolina
- South Dakota
- Utah
The list keeps shrinking. North Carolina introduced legislation in 2025 to abolish both alienation of affection and criminal conversation, and Utah has faced similar pressure. More than 40 states eliminated these claims years ago, citing concerns about blackmail-style threats and skepticism that one outsider can really destroy a functioning marriage. If you live outside the states above, a direct lawsuit against your spouse’s affair partner is not available to you, and the rest of this article explains what that means in practice.
If you do live in one of these states, confirm the law is still in effect before you spend money pursuing a claim. Courts in these states often treat the claims skeptically even when they remain on the books.
What You’d Have to Prove
The states that still allow these suits recognize two distinct claims, and they work very differently. Knowing which one fits your facts matters, because the evidence you need is not the same.
Alienation of Affection
This is the broader claim. It lets you sue a third party whose deliberate interference destroyed the love and companionship in your marriage. Proving an affair happened is not enough. You have to establish three things:
- A genuine, loving marriage existed before the third party came into the picture. Testimony from friends and family, photographs, and shared history can support this. If the marriage was already breaking down, the claim collapses, because there was no affection left to alienate.
- The third party’s actions were the primary reason that affection disappeared. You do not have to prove the defendant set out to destroy your marriage, but you do have to show they knowingly acted in a way that would foreseeably damage it.
- You suffered real harm, whether financial, relational, or emotional.
One point that surprises people: the defendant does not have to be a romantic partner. Alienation of affection claims have been brought against in-laws, friends, and others whose interference drove a wedge between spouses. The question is whether deliberate conduct caused the marriage to fail, not whether that conduct was sexual.
The strongest defense is usually that the marriage was already broken. Separate bedrooms, prior divorce discussions, or long-standing unhappiness before the defendant appeared can sink the claim. A defendant who genuinely did not know your spouse was married also has a real argument, because the claim requires intentional interference.
Criminal Conversation
Despite the name, this is a civil lawsuit, not a criminal charge. It is narrower and, in some ways, simpler. You only have to prove two things: that a valid marriage existed at the time of the affair, and that the defendant had sexual intercourse with your spouse. You do not have to prove the marriage was happy or that the affair caused it to end.
Direct evidence of sex is rarely available, so courts accept circumstantial proof: overnight stays, romantic messages, hotel receipts, witness accounts. Unlike alienation of affection, the defendant in a criminal conversation case typically cannot escape liability by claiming they did not know your spouse was married. The focus is on the act itself.
Deadlines
Most states that still recognize these claims impose a statute of limitations of around three years, though the exact deadline and when the clock starts vary. Some states measure from the date of the wrongful conduct; others start counting when you discovered or should have discovered the interference. Miss the deadline and the case is gone, no matter how strong the evidence.
If You Live in a State That Abolished These Claims
In most of the country, the only theory left is intentional infliction of emotional distress. It exists in nearly every state. It almost never works for an affair.
The standard is deliberately high. The defendant’s conduct has to be so outrageous that a reasonable person hearing about it would be shocked, and courts have consistently held that an affair, even a long and deceitful one, does not clear that bar. Ordinary infidelity, however painful, is not treated as intolerable in the legal sense. Courts in Texas and elsewhere have explicitly rejected both intentional and negligent infliction of emotional distress claims based only on a spouse’s affair.
The narrow exceptions involve conduct that goes well beyond the affair. A therapist who exploits a professional relationship to start a relationship with a patient’s spouse adds a layer of abuse a court may treat differently. A third party who launched a campaign of harassment, threats, or public humiliation against you might meet the standard. If the only wrongful act is the sexual relationship, the claim will almost certainly fail.
What a Win Is Actually Worth
Even in states where these lawsuits survive, the headline verdicts you may have read about are the exception, not the rule. Many cases settle for far less, and many end in defense verdicts. Before you file, look at what actually reaches your bank account.
Taxes. Because these claims are based on emotional harm rather than physical injury, the IRS treats the entire award as taxable income. Federal law only excludes damages received “on account of personal physical injuries or physical sickness,” and the statute explicitly says emotional distress does not qualify.1Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness The narrow exception is reimbursement for medical expenses tied to emotional distress, such as therapy costs, which can be excluded if you did not already deduct them.2Internal Revenue Service. Tax Implications of Settlements and Judgments A verdict that sounds life-changing shrinks considerably after federal and state income tax.
Legal fees. These cases require evidence gathering, depositions, and trial preparation, and most attorneys handle them by the hour rather than on contingency. A contested case can run into tens of thousands of dollars in fees before trial.
Collectibility. A jury can award millions, but a judgment is only worth what the defendant can actually pay. If the third party has few assets or little income, even a large verdict may be difficult or impossible to collect.
The emotional cost. These cases put the most painful details of your marriage on the public record. Depositions will probe the intimate history of your relationship, and the defense will work to show the marriage was troubled long before their client appeared. For some people, that process deepens the wound rather than closing it.
How the Affair Can Still Matter in Your Divorce
Even if you cannot sue the third party, the affair may still count in your divorce. In pure no-fault states, courts divide property and set support based on financial factors and ignore who caused the breakup. In states that allow fault-based grounds or consider marital misconduct in equitable distribution, infidelity can influence alimony and, sometimes, property division. If the cheating spouse spent significant marital funds on the affair, a court may account for that dissipation of assets when dividing property.
Filing an alienation of affection lawsuit while a divorce is pending adds complexity, because the two cases share facts and witnesses, and testimony in one can surface in the other. Some attorneys use the threat of an alienation claim as leverage in divorce negotiations, pressing the cheating spouse toward a more favorable settlement to keep the third party out of court. Whether that strategy fits your situation depends on your state, your evidence, and how much litigation you can realistically sustain at once.