Causing a Spouse to Separate from or to Refuse to Return to Another Spouse

Under the common law, there existed a tort for causing a spouse to separate from or to refuse to return to another spouse. Although most states have enacted statutes that have abolished the tort, there are a few states in which a spouse may bring an action against a third party for the tort.

Two Circumstances

The tort of causing a spouse to separate from or to refuse to return to another spouse arises under two circumstances. The first circumstance is when a third party abducts a spouse or by another intentional act causes the spouse to leave the other spouse. The second circumstance is when the third party, for purposes of disrupting the marital relationship, induces a spouse to separate from another spouse or to not return to the other spouse after being separated.

When a third party abducts a spouse or intentionally causes the spouse to leave the other spouse, the third party’s purpose is not an issue. The third party does not need to have an intent to affect the marital relationship. The fact that the third party abducted the spouse or caused the spouse to leave the other spouse is the act for which the third party is liable to the other spouse.

When a third party induces a spouse to separate from another spouse or to not return to the other spouse after being separated, the third party must intend to disrupt the marital relationship. The third party is not liable if he or she has another purpose. However, if the third party merely persuades or induces the spouse to voluntary separate or to not return to his or her spouse, the third party is liable to the other spouse for damages.

A third party is only liable to another spouse for a separation that occurs as a result of the third party’s conduct. If the third party’s act or acts did not influence the spouse, he or she is not liable. The third party’s act or acts do not have to be the sole cause of the separation. It is only necessary that the third party’s advice, encouragement, or other act or acts were a substantial factor in the spouse’s decision to separate from his or her spouse or to not return to his or her spouse.

Requirements for Tort

When a spouse brings an action against a third party for a separation or for a failure to return to the spouse, the spouse only needs to prove that there was a separation or that his or her spouse did not return after the separation. The spouse does not need to show any other loss, such as a loss of affections or an act of adultery. If there is only a separation, the third party is liable for the harm to the spouse’s legally protected marital interests. Such interests include a loss of society, services, or support.

If a spouse is successful in his or her action against a third party for a separation or for a failure to return to the spouse, the spouse is entitled to damages from the third party. The amount of damages will include the spouse’s loss of the other spouse’s society, services, or support. The spouse may also be entitled to damages for emotional distress as a result of the disruption of the marriage relationship. The damages may be increased if the third party engaged in sexual intercourse with the other spouse or alienated the affections of the other spouse.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.