The Miss. Court of Appeals settled an age old question last week: it’s not cheating if you don’t get caught(within 3 years)—at least not when it comes to getting sued. Here is the Court’s opinion in Cheated on vs. Dude Who Cheated with Spouse.


Yep. It’s another alienation of affection case. The relevant facts are:

  1. cheating/ affair
  2. affair ends
  3. three years elapses
  4. affair discovered
  5. lawsuit filed

The trial court granted summary judgment to the defendant. A unanimous Court of Appeals affirmed, ruling that the statute of limitations elapsed because the affair ended more than three years before the filing of the lawsuit. The Court rejected plaintiff’s contention that the discovery rule applied.

My Take:  

This was a weird fact pattern involving a goofy cause of action. So we shouldn’t be surprised when it led to a questionable decision.

Cheaters everywhere applaud the Court’s decision as a sensible limitation on suing people for screwing around. There are probably a lot people who were screwing around with someone else’s spouse more than three years ago who are sleeping easier tonight.

Too bad the Court of Appeals did not take advantage of the opportunity to call for the abolishment of the entire cause of action.

  • Anderson

    Some great lines in there.
    “Because Watson’s loss of affection for his wife, once he learned of the affair, was irrelevant for accrual purposes, the case was remanded for further discovery on the date of accrual of the loss of the wife’s affections.”
    “Although a clandestine affair is a secretive wrongdoing, it is not unrealistic to expect a plaintiff to perceive, at the time of the affair, the resulting harm—the loss of consortium through alienation of the spouse’s affection.”
    “Fulkerson testified he did not notice any changes or loss in his marriage relationship during the time of the affair. He admitted he did not exercise reasonable diligence concerning the state of his marriage but instead traveled often for work and pre-occupied himself with his grandchildren.”
    “Were we to adopt Fulkerson’s position, a person who had an affair with a husband or wife twenty-five years ago would be potentially liable for alienation of affection on the basis of one nostalgic, rekindling phone call – even though the affair had ended decades earlier and his or her spouse experienced no loss of consortium for
    twenty-five years.”
    Someone needs to assemble The Mississippi Appellate Courts’ Guide to Love.

  • Jose

    Why get rid of alienation of affection causes? Aren’t they really just gussied up intentional infliction of emotional distress actions?
    If we do get rid of the AOA causes, does the victimized spouse still have a remedy under an intentional infliction of ED theory? Or do we do away with ALL intention infliction of ED causes?

  • Roland Tembo

    On a similar note, Jose, I wonder if another kind of ED plays a contributing role in some of these types of cases.

  • Anderson

    IIED is harder to prove than AOA, though if I were pleading the latter, I would throw in the former as well — why not?

  • randy

    IIED is often easier to prove, but you have a 1 year SOL.

  • Jose

    *On a similar note, Jose, I wonder if another kind of ED plays a contributing role in some of these types of cases.*
    I had to read that 6 times before I figured out what you were talking about. LOL