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Cary's Corner: Alienation of Affection

Posted on Jan 8, 2012 10:30pm

­Happy New Year, readers! January is always a time to look forward, but no matter how much we focus on the future, it seems the past always finds a way to reinsert itself into our lives. For example, even as I began the new year, I was being deposed in a lawsuit concerning an old case at Lockhart Gardner. Readers of this blog will remember that I've had an at times contentious relationship with the firm, but in this case, it was easy to answer all the deposition questions honestly and help my old firm out in the process.

From all appearances, the suit against Lockhart Gardner was a cash grab. Initially, the charge was alienation of affection. But it soon became clear the real matter at stake was the lost profits from a business that was sold hastily in a divorce, mere months before it made millions by producing one of the most popular smart phone apps. The husband and wife reconciled, and naturally, they wanted the money back they had lost.

The alienation of affection angle was creative. It's a tort that has been abolished in a majority of states, except seven -- Illinois, North Carolina, Mississippi, Hawaii, New Mexico, South Dakota, and Utah. So for those of you planning to be the other woman/man, make a note to avoid those states, as you can be sued for your home-wrecking ways, and big paydays can result from these lawsuits. A North Carolina woman was awarded $9.1 million award in 2010 for alienation of affection. Luckily, that won't be happening in Cook County. In Illinois, damages are limited; there is no money awarded for emotional distress or pain and suffering.

This curious situation came about when the Illinois legislature attempted to abolish the alienation of affection tort in 1947. The Illinois Supreme Court rejected that effort. In response, the Illinois legislature then passed a statute limiting monetary recovery to actual damages resulting from alienation of affection but no additional damages. The legislature was concerned that the tort was primarily used as a blackmail tool, and that monetary damages were ineffective in compensating the plaintiff for genuine emotional distress. Naturally, limiting the award amount drastically cut the number of cases filed, and so while alienation of affection remains on the books in Illinois, it has become something of an antiquated legal curiosity.

There is, however, one high-profile recent example of this tort in Illinois. In May 2010, the ex-wife of basketball star Dwayne Wade charged Wades' girlfriend, actress Gabrielle Union, with alienation of affection. A Cook County judge later dismissed the suit, but not before it garnered national attention.

Time can change everything: People who were college sweethearts become bitter enemies. Former professional rivals become allies. And of course, that goes doubly in Chicago. I've had my dustups with Lockhart Gardner, but I enjoyed being on the same side of the law with them for once. And if supporting them helped to smooth over some feathers that may have been ruffled in the past, all the better. A new year, a fresh start.