Can having sex with married Mississippian, outside Mississippi, expose you to an "alienation of affections" lawsuit in Mississippi?

|The Volokh Conspiracy |

Mississippi and North Carolina are the only two states in which "alienation of affections" claims are regularly brought; under this tort—which was once recognized almost everywhere in the United States—spouse A can sue spouse B's lover for "alienating the spouse's affections" and undermining or destroying A's and B's marriage. (I'm oversimplifying here to some degree, but let's just work with this definition.)

I've briefly discussed the tort itself before, but here I want to focus on a jurisdictional question: Say you're a Californian having an affair with a married Mississippian in California. Can the cheated-on spouse still sue you in Mississippi, on the theory that you damaged the plaintiff, and the damage was felt by the plaintiff at home in Mississippi?

Two weeks ago, in Nordness v. Faucheaux, the Mississippi Supreme Court held—by a 7-2 vote—that such a claim generally can be brought in Mississippi if you knew your lover was a Mississippian, but can't be brought there if you didn't know that:

Our review of United States Supreme Court precedent makes it abundantly clear that our courts cannot constitutionally assert personal jurisdiction over [defendant] Francesca [Nordness] in this case. And our own jurisprudence supports this holding. In every case where Mississippi courts have exercised personal jurisdiction over nonresident paramours, our courts have made it clear that the paramours knew they were engaged in a relationship with a person from Mississippi.

In Knight v. Woodfield, we held that our courts could exercise personal jurisdiction over a nonresident paramour. But, unlike our case today, the nonresident defendant in Knight was fully aware he was having an extramarital affair with a Mississippi resident whose marital home was in Mississippi….

[Plaintiff] Paige [Faucheaux] correctly asserts that it is possible for a nonresident to be subject to a court's personal jurisdiction without ever stepping foot in the forum state. But that statement, standing alone, is not sufficient to justify the quantum leap to a finding that a nonresident who was unaware of making any contact with Mississippi is subject to the jurisdiction of our courts. We know of no case that suggests the possibility that a person who is unaware of making any contact with a forum state may nonetheless establish constitutionally required purposeful, minimum contacts.

So don't have affairs with visitors from Mississippi or North Carolina, or you'll be on the hook for a possible alienation of affections lawsuit there. (I set aside the other moral and practical problems with having affairs.) But if you don't know your lover lives in one of those states, you needn't stay up nights worrying that the lover might secretly be from there, and that you could be sued in that state.

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