My Spouse is Having an Affair, Can I Sue the Mistress?
You caught your spouse red-handed, you have evidence that your spouse is having an affair, and you are certain that the affair is what’s ruining your marriage—can you sue your spouse’s mistress for interfering with your marriage? No. Pennsylvania, like most states, has abolished claims of “alienation of affection.” Prior to 1990, aggrieved spouses were permitted to sue their spouse’s mistress for “alienation of affection,” arguing that the mistress deliberately, willfully and maliciously stole the affections of their spouse. To prevail on such a claim, you were required to show that the mistress knew of the marriage, and despite that knowledge, the mistress continuously pursued your spouse with the malicious intent to steal his affections.
With claims for “alienation of affection” no longer permitted, many creative spouses have attempted to find different legal remedies for holding their spouse’s mistress accountable for destroying the marriage—the most popular being a lawsuit for intentional infliction of emotional distress (IIED). To successfully bring a claim for IIED, the plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress. Courts have been reluctant to award damages for IIED against mistresses, and Pennsylvania courts have expressly refused to recognize IIED claims against a mistress based solely on the mistress’s role in the affair.
While you can no longer sue your spouse’s mistress, Pennsylvania still permits fault-based divorce, and adultery is one of the grounds for divorce. Additionally, when awarding alimony, Pennsylvania courts consider a variety of factors, one of which is “marital misconduct” which arguably includes extramarital affairs. Although an aggrieved spouse cannot bring a civil claim against the mistress because of the affair, the affair itself can impact the divorce process and the assessment of alimony.
