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Posted by: tdt -

“Can I sue the boyfriend for screwing up my marriage?”

    Question:  My wife and I have been married for three years and I just found out that she has been having an affair with someone she works with.  When I confronted her, she left to be with this guy from her work.  I feel like this guy has really taken advantage of my wife and has been working on her, talking bad about me and making her feel like I’m the problem.  My wife is young and impressionable, and I believe in my heart that he persuaded her to get involved with him, but that if he had just been the gentleman that she thought he was that our marriage would still be okay.  What I want to know is can I sue the boyfriend for screwing up my marriage?  

Answer:  No.  At one time an aggrieved spouse could file a suit against a paramour (boyfriend or girlfriend), but that right has long been repealed in Texas.  The action was an alienation of affection suit, and it is no longer authorized in Texas.  It received that name because the wrongdoer was said to cause the spouse to alienate their mate and withdraw their affections by giving them to someone else.

One way to think of marriage is that it is a legal contract between two people, and two people only:  the husband and the wife.  At the time the two enter into the marital relationship, they agree to be married and their actions are not dependent upon the actions of any other person, unless one of them is underage and then the action of that person’s parent is required.  When the marital contract is breached, it is the two parties to the contract that are obligated under the contract, and not any third party.

Third parties that often build relationships with the married couple are creditors.  Those legal relationships are not changed as between the third party and either married spouse in the event the couple divorces or separates.  In other words, the legal relationships entered into by the married couple, either one or both of them, remain in tact post-divorce.  A court or judge may not change any legal contracts that the parties have entered into with third parties, but may only order the parties to continue to perform under those contracts.  If either party fails to perform, the third party creditor may still file their own lawsuit against whoever entered into the contract with them, regardless of what a divorce decree states.  The spouse who is harmed by the failure of the other spouse to abide by the terms of the divorce decree must seek redress before the divorcing court.

With that in mind, it is easier to understand why a court or judge may not pursue a cause of action against a third party boyfriend or girlfriend.  The relationship created between a married spouse and that person is not within the court’s jurisdiction to change, interfere with or terminate.  The punishment for marital infidelities is handled by the court through decisions made about the division of the property of the divorcing parties or about the conservatorship, possession and access of the parties’ minor children.  Unfortunately, the amount of “punishment” that a court may assess to one of the parties is difficult to determine and often there are no funds in the marital estate to give to one of the parties for the transgressions of the other party.  It is said that there is no equity in a court of law for a broken heart and even a disproportionate division of the marital estate can’t put the pieces back together.

If the wife in the question decides to end the extra-marital relationship and then has a problem with the boyfriend, any cause of action that might exist is only between her and the boyfriend, and not between the husband and the boyfriend.  The alienation of affection lawsuit of days of old is not an option.  

This column is meant for informational purposes only and not as a substitute for sound legal advice.  Direct questions to Ask the Lawyer to robin@robinscottlaw.com or via the Facebook page for the Dalhart Texan.