In contrast, fundamental unfairness is not the evil usually associated with restrictions on formal autonomy such as laws penalizing alienation of affection.
See Sheri Stritof & Bob Stritof, Alienation of Affection State Laws, ABOUT.
If the reasons offered by the state to justify the restriction were relatively weak as compared to the importance of the autonomy interests infringed, as may well be the case with respect to applications of alienation of affection laws such as hypothesized here, then this restriction would arguably fail to respect formal autonomy, thereby rendering it illegitimate.
The alienation of affection judgment that I hypothesized in text, an activity that even more clearly involves communicative action than does sexual conduct, might, arguably, be another example.
In order to be successful in an action for alienation of affection, the innocent spouse must prove that: a marriage existed between the plaintiff and his/or her spouse; the marriage entailed love and affection between the spouses; the love and affection was destroyed; the defendant's malicious conduct contributed to or caused the loss of affection; and the plaintiff suffered injury and damages.
Actions for alienation of affection are generally brought by the innocent spouse against the paramour of the guilty spouse and do not require proof of adultery.
The usual defense to a claim of alienation of affection is that the love and affection in the marriage had been lost prior to the adulterous spouse's involvement with the third party.
Unlike alienation of affection, a cause of action for criminal conversation does require proof of adultery between the defendant and the plaintiff's spouse.
In North Carolina, the statute of limitations for both alienation of affection and criminal conversation is three years.
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The court added that alienation of affections
remains a legitimate cause of action in nine states.