When former U.S. Sen. Kyrsten Sinema was recently sued for allegedly wrecking a long-term marriage with three children, six states sanctioned lawsuits for alienation of affections by abandoned spouses. The number has since dropped to five states, with Utah legislators poised to eliminate their law any day.
Suits for alienation of affections allow separated and divorced spouses to bring a civil action for monetary damages against a third party who intentionally causes or contributes to the destruction of an otherwise happy marriage. Anyone who interferes with the marriage in that manner can be sued, but the defendant is typically the affair partner of an estranged spouse. The damages sought can be compensatory (for emotional distress and loss of consortium), punitive (to punish the wrongdoer and deter further wrongdoing), or both.
The devastating effects infidelity and marital breakdown have on families and communities can no longer be seriously challenged. So why are courts and legislators so eager to abolish these laws and strip the last vestiges of protection for innocent spouses and children?
On Jan. 26, 2026, the New Mexico Supreme Court unanimously abolished New Mexico’s common law tort for alienation of affections, wiping out 103 years of protection. The court recognized the cause of action had always been available without regard to sex, but was nevertheless offended by the law’s so-called “patriarchal origins,” which ostensibly considered women property. If that’s sound reasoning, why not strike down other laws that have been extended to women?
The court further called the law “dehumanizing” because it purportedly presumed a “spouse has no agency regarding to whom they give their affections,” wrongfully taking marital “interlopers to task for effectively stealing the affections of the spouse just as one might steal an inanimate object.” Translation: Breaking up a marriage can be analogized to, say, stealing a candy bar from a corner deli. Clearly, cheaters and paramours need more defending than victims.
The couple in the New Mexico lawsuit had married in 2007, had children, and divorced in 2022. Ex-husband James Butterworth claimed that his wife and her boyfriend met at a party, after which the boyfriend aggressively pursued his wife, leading to the break-up. Butterworth’s wife intervened in the action, alleging her boyfriend’s extra-marital attentions were not unwelcome. She objected to providing evidence of their communications, claiming an invasion of her privacy.
In denying Butterworth relief, the court held that filing a no-fault divorce action was the proper remedy for abandoned spouses. It opined that by adopting no-fault, New Mexico legislators signaled an intent to “avoid inquiry into what had gone wrong in a marriage.”
But what if an innocent spouse wants to save the marriage? Infidelity is devastating, but reconciliations do occur, especially when affair partners are willing to bow out. And if fault is irrelevant in a no-fault divorce, how does an innocent spouse then recover for the harm of infidelity?
Several years earlier, this very same court gushed over the rights and protections allegedly denied to same-sex couples and the attendant harm to the “stability” of relationships. Apparently, some relationships are more worthy of safeguarding in New Mexico than others.
Counsel for Butterworth, Gary Boyle, told me his client has not yet decided whether to appeal.
In January, Republican state Sen. Todd Weiler introduced a bill to eliminate the alienation of affections law in Utah. In one week, the bill was reported out of committee, approved by the Senate, and shipped to the House. The state has one of the nation’s shortest legislative sessions, known for fast-tracking legislation.
Greg Hughes, former Speaker of the Utah House, who now co-hosts a popular radio talk show, was flabbergasted to learn of the legislation.
“Are they trying to hide something?” he asked me. “I’m not a public servant any longer, but wouldn’t there be an optics issue if you were trying to get rid of that provision as a lawmaker? … We’re trying to defend the family over here. This is accountability. You want to be a homewrecker, you ought to face some justice.”
Alan Hawkins, professor emeritus at Brigham Young University, family and marriage expert, and former chair of the Utah Marriage Commission, wasn’t aware of the bill either.
“Although some judges don’t want to see the action argued in their courtrooms, I think it would be best to leave it on the books,” he told me. “Family instability is the most important social issue of our time. The research shows how beneficial good marriages are to adults, children, and communities.”
But Sen. Weiler said the law disrespects the free will of spouses “who have decided to move on to a different relationship.” He’s “most” offended by the origins of the law that he said categorized women as property — a claim right out of a feminist playbook. He also pointed to unspecified cases of alleged “‘vengeful’ litigation” that influenced his mission to squash the law.
Which ones? The $10 lawsuit against the Mormon Church? The bombshell pending lawsuit against a wealthy Utah real estate mogul who has been accused of offering another man’s wife $1.5 million — documented in writing — to leave her husband, around the same time he left his wife? The female contractor eventually left her marriage too, but says her decision was unrelated to the mogul’s proposal.
Sen. Weiler claims he doesn’t “necessarily want to protect” people who cheat on their spouses. But isn’t that exactly what he and his colleagues in the Utah legislature are doing? So much for Utah’s claim to be “the most family-friendly state in the nation.”
Sen. Daniel McCay, the lone senator who voted against the bill, told me: “I voted no because marriage is worth defending. Unfortunately, there’s pressure to normalize immoral behavior by removing consequences from the law.”
If the Utah legislation succeeds, which it’s on track to do, that will leave only four states with alienation of affection laws on the books. The law still appears to be strong in North Carolina, where Sinema is being sued, but there have been repeated attempts to repeal it.
Despite legal and legislative outcries against such laws in South Dakota, in 2018 the state’s Supreme Court held that alienation of actions remains firmly entrenched. Lawsuits in Hawaii and Mississippi are rare, but they remain viable causes of action there too. For now.
