Alienation of affection: down to three states in 2026
Two different things share almost the same name, and confusing them wastes people a great deal of money. Parental alienation is a custody concept: an argument about one parent turning a child against the other. Alienation of affection is a civil lawsuit for damages against a third party — the person your spouse left you for, or sometimes an in-law — on the theory that they destroyed a functioning marriage. This page is about the second one. The first one is here.
Almost every article you will find online says this claim survives in six or seven states. That was true in December. It is not true now. Utah abolished it by statute on 6 May 2026, and the New Mexico Supreme Court abolished it in January 2026. We have also pulled Hawaii off the list, for a different reason: every source that lists Hawaii cites a statute that turns out to be about Good Samaritans giving emergency care. We would rather say we do not know than repeat a citation we have read and know to be wrong.
In this subject 3
Where the claim is still alive
In this subject 3
Read at the statute or the opinion, 1 September 2026. Utah abolished it by statute in May and New Mexico’s supreme court abolished it in January, so almost every other list online is now wrong. The forty-four unshaded states never had it or lost it long ago.
| State | Status | Where it is written | What it means |
|---|---|---|---|
| North Carolina | Still allowed | N.C. Gen. Stat. s. 52-13 | Only conduct before the date of separation counts, only a natural person can be sued, and the claim must be brought within three years. North Carolina also keeps the companion tort of criminal conversation, which is the sexual-intercourse claim rather than the affection claim, and the two are usually pleaded together. |
| Mississippi | Still allowed | Mississippi common law | The Mississippi Supreme Court has kept alienation of affection alive as a common-law claim while abolishing criminal conversation. There is no statute to read; the rule lives in the case law. |
| South Dakota | Still allowed | SDCL 20-9-7; Veeder v. Kennedy, 1999 SD 23 | The South Dakota Supreme Court was asked to abolish the tort in 1999 and refused, saying the decision belonged to the legislature. The legislature has not taken it. |
| Utah | Abolished in 2026 | Utah Code ss. 78B-3-1301 to -1302, added by S.B. 109 (2026), effective 6 May 2026 | Utah abolished it by statute this year. The new section says in terms that there is no right of action for alienation of affections. Any article listing Utah as a live jurisdiction was written before May. |
| New Mexico | Abolished in 2026 | Butterworth v. Jackson, No. S-1-SC-40623 (N.M., January 2026) | The New Mexico Supreme Court abolished the tort in January, overturning Birchfield v. Birchfield, which had stood since 1923. The opinion traces the claim to a time when a wife was treated as her husband’s property. |
| Hawaii | Unconfirmed | We could not confirm it either way | Hawaii appears on several published lists of states that still allow the claim, always citing Haw. Rev. Stat. s. 663-1.5. We read that section. It is a Good Samaritan provision about emergency care and has nothing to do with alienation of affection. We could find no entry for the tort in the Hawaii statutes index at all. Rather than repeat a citation we know to be wrong, we are telling you that we do not know. |
Checked against the statutes and opinions themselves on 31 August 2026. In the other forty-four states this cause of action does not exist, and no amount of unfairness will create it.
Alienation of Affection: The Third-Party Lawsuit, Not the Custody Concept
Alienation of affection is a civil lawsuit a spouse can bring against a third party they claim helped destroy the marriage, most commonly someone the other spouse had an affair with. It is a completely different legal concept from parental alienation, which is a custody argument about one parent turning a child against the other. As of mid-2026, only a small number of states still allow it, and the map has been shrinking fast: New Mexico’s Supreme Court abolished it in January 2026, and Utah’s legislature voted to abolish it effective May 2027, meaning Utah still recognizes it as of today even though its repeal has already been signed into law. North Carolina, Mississippi, South Dakota, and Hawaii are the states most consistently identified as still allowing it as of 2026. In more than forty other states, this cause of action simply does not exist, no matter how badly a marriage ended.
Alienation of affection is a tort claim by a spouse against a third party, typically someone accused of having an affair with their spouse, for damaging or destroying the marriage; it is legally distinct from parental alienation, a custody-context term about a parent’s behavior toward a child.
Reported consistently, not settled
The two terms are frequently confused because they sound similar, but alienation of affection is a lawsuit for money damages against an outside person, filed in civil court, while parental alienation is raised inside a custody case about a parent’s own conduct.
As of mid-2026, North Carolina, Mississippi, South Dakota, and Hawaii were identified as the states most consistently still recognizing the tort of alienation of affection.
Reported consistently, not settled
Secondary sources published in 2026 describe these as the small remaining group after decades of state-by-state abolition, though exact counts vary slightly across sources depending on how they treat Utah (which still recognized it in 2026 but had passed a repeal effective 2027) and Hawaii (some sources describe Hawaii’s version as limited).
The New Mexico Supreme Court abolished the tort of alienation of affection in January 2026, overturning a 1923 precedent.
In Butterworth v. Jackson, the court held the tort incompatible with the state’s 1973 no-fault divorce law and modern views of spousal autonomy, ending a claim that had allowed a spouse to sue a third party for breaking up a marriage.
the legal recourse for lack of affection in a marriage is dissolution of the marriage and alimony
Butterworth v. Jackson, New Mexico Supreme Court, No. S-1-SC-40623 (Jan. 26, 2026)
Utah’s legislature passed a law abolishing the right of action for alienation of affection, but the repeal does not take effect until May 5, 2027, meaning the tort remained legally available in Utah through 2026.
Senate Bill 109 (2026 general session) was signed by Governor Cox and adds a provision stating there is no right of action for alienation of affections, but the statute’s own effective date is more than a year after signing, so anyone relying on a simple ‘states that still allow it’ list needs to check the effective date, not just the headline that Utah abolished the tort.
There is no right of action for alienation of affections.
Utah S.B. 109 (2026), amending Utah Code s. 78B-3-1302
Mississippi continues to recognize alienation of affection as a viable claim, while it separately abolished the related tort of criminal conversation.
Reported consistently, not settled
The Mississippi Supreme Court, in a case addressing both torts, treated alienation of affection as a continuing valid claim while eliminating criminal conversation (a claim based on the affair itself, without needing to prove the marriage was harmed) as a matter of common law.
We have recently recognized the continued viability of the tort of alienation of affection
Saunders v. Alford, Mississippi Supreme Court (1992)
North Carolina imposes specific limits on alienation of affection and criminal conversation claims: only conduct occurring before the couple’s permanent physical separation counts, suits are limited to individuals (not entities), and there is a three-year statute of limitations from the last qualifying act.
These statutory limits were added to narrow what had been an open-ended common law claim, but did not abolish it, which is why North Carolina remains the state most associated with large alienation of affection verdicts.
No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent. … An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action. … A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.
North Carolina still allows criminal conversation, a related tort that only requires proof the defendant had sex with the plaintiff’s spouse while the plaintiff and spouse were married, without needing to prove the affair caused the marriage to fail.
Reported consistently, not settled
Criminal conversation and alienation of affection are often brought together in North Carolina but are legally distinct: criminal conversation is essentially a strict-liability claim based on adultery itself, while alienation of affection requires proof that the defendant’s conduct actually destroyed the couple’s love and affection.
North Carolina juries have returned multi-million dollar verdicts in alienation of affection cases in the 2020s.
Reported consistently, not settled
One verified example: a Catawba County, North Carolina jury awarded 1.3 million dollars in an alienation of affection case in March 2023.
Fish v. Stetina, Catawba County Superior Court, N.C. (jury verdict March 14, 2023)
In more than forty other US states, alienation of affection has been abolished by statute or judicial decision, and no such lawsuit can be brought no matter the facts of the affair or the harm to the marriage.
Reported consistently, not settled
This is important for a reader outside the small remaining group of states to understand clearly: the emotional and financial devastation of an affair is not, in most of the country, a basis for suing the third party in civil court, regardless of how the marriage ended.
state-by-state abolition, secondary sources
Alienation of affection is a civil tort suit against a third party (often an affair partner) for destroying a marriage. Parental alienation is an argument raised inside a custody case about one parent’s conduct toward the children. They involve different parties, different courts, and different legal standards entirely.
As of 2026 this claim survives in only a handful of states, chiefly North Carolina, Mississippi, South Dakota, and Hawaii, with Utah’s repeal already signed but not effective until May 2027 and New Mexico having abolished it by court decision in January 2026. In the other 40-plus states, no such lawsuit exists.
What to actually do
- If you are considering an alienation of affection or criminal conversation claim, confirm your state is actually one of the small remaining group, and check whether any recent legislative or court action has changed that in the last year, because this area of law is shifting quickly.
- In North Carolina, remember the strict rules: only conduct before permanent physical separation counts, you must sue within three years of the last qualifying act, and you can only sue an individual person, not a company.
- Do not confuse a custody argument about the other parent turning the children against you (parental alienation) with a possible third-party lawsuit over the affair (alienation of affection); they require entirely different legal strategies and are handled in different proceedings.
- This is a rapidly changing and narrow area of law; verify current status directly with a licensed attorney in the specific state before relying on any ‘which states allow it’ summary, including this one.
- Some secondary sources use inconsistent lists (naming Utah or New Mexico as current) that were accurate only before their respective 2026 changes; always check the date of the source.
Keep reading
- Parental alienation — the custody concept, which is a different thing
- When there was an affair
- Fault grounds and whether they change anything