IIED vs Alienation (Different)

[TripleJn]

What is the name of your state? MS

In my state, alienation of affection is legal, and my husband is not contesting the adultery. One of the many issues is that we live on the state line of TN where he also works. (Alienation has been abolished there.) Our divorce will be in MS.

Am I to understand that unless he did these things in MS, I can't get her for Alienation? I am on disablilty for a chronic illness, and after years of medications, we were planning on having a child and were looking into adoption. I have a slam dunk, no previous problems case for the adultery and ALIENATION. (Including an admission, on top of photos, phone bills, etc.) This was very sudden. I am suffering deep depression which I have battled during my illness, and I have been told that Intentional Infliction of Emotional Distress is now often used in lieu of the old heart balm laws. It is complicated when you border 2 states within a few miles.

I feel like my face is being rubbed in it. I've been told I'm "all talk" and like I would do nothing regardless. I am trying to make a careful, non-emotional decision, but I have never seen a case like this one. (The shock of him leaving with not so much as a fight or cross word in months. Then, I get better and he want to leave?)

There are many extinuating circumstances that would apply to the damages, but I won't go into them here now. I hate to think there is nothing I can do. I feel I'm being taunted. I only THOUGHT I had suffered depression before. I can't function. I feel like I've lost him and the chance to ever be a mom. This isn't drama talking. It's the biological clock. I've lost everything, and I hadn't a clue it was coming.
Thank you for your help.

 

[Ohiogal]

Why don't you just divorce him? Quite frankly that would be best way to go about it.
No case is EVER a slam dunk. EVER. There is always a chance you can lose it. The only definite is if you settle.

From http://biotech.law.lsu.edu/Courses/tortsF01/IIEM.htm :
The tort of intentional infliction of emotional distress has four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Hyatt, 943 S.W.2d at 297.
You don't meet that IIED. This is not extreme and outrageous conduct. conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts section 46 cmt. d (1965). The defendant's conduct must be more than malicious and intentional; and liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. Viehweg v. Vic Tanny Intern. of Missouri, Inc., 732 S.W.2d 212, 213 (Mo.App.1987). "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery...." Restatement (Second) of Torts section 46 cmt. h (1965). The court must determine whether an average member of the community upon learning of the facts alleged by plaintiff would exclaim "outrageous!" Viehweg, 732 S.W.2d at 213.

Read this for what you need to prove http://marriage.about.com/od/legalities/g/alienationdef.htm

So if you must sue for something other than divorce, sue HER for alienation of affection.
And don't be surprised if you cannot prove that she maliciously interfered with the marriage.

 

[nextwife]

I feel like I've lost him and the chance to ever be a mom. This isn't drama talking. It's the biological clock.

Hon, LOTS of divorced women adopt (or have babies via sperm banks) POST divorce. And they are very happy families. I am on web lists for adoptive families, and a large percentage are single adoptive parents.

Don't give up on adoption just because you aren't with a man!