What Is Alienation of Affection? Attorney Expert Breaks Down Rare Legal Concept That Cost a TikToker $1.75 Million (Exclusive) By Zoey Lyttle

A TikToker’s North Carolina lawsuit is making headlines.

In a civil lawsuit filed in May 2024 with the Durham County Superior Court, Akira Montague accused TikToker Brenay Kennard of “alienation of affection,” intentionally spurring the end of her marriage, and “criminal conversation,” having sex with a person’s spouse. Both legal claims are only recognized in five states, North Carolina included.

Kennard, who maintains a following of over 3 million across TikTok and Instagram, shares day-in-the-life videos and other vlog-style content, regularly featuring Timothy in her posts.

On Monday, Nov. 10, a jury sided with Montague, who had sought $3.5 million in damages for an affair with her then-husband, Timothy Montague. Kennard was ordered to pay $1.75 million in damages to her husband’s ex-wife.

Brett Ward, a partner in Blank Rome’s Matrimonial & Family Law Group and co-chair of the firm’s litigation department, tells PEOPLE about the history of alienation of affection and how social media played a role in Montague v. Kennard.

What is alienation of affection?

Alienation of affection is a civil tort that allows individuals to sue another for intentionally spurring the end of a marriage. Ward says the law often goes hand-in-hand with another civil tort, criminal conversion, which allows one to sue for extramarital sexual acts. Montague accused Kennard of both statutes.

In alienation of affection cases, the burden of proof is only preponderance of the evidence, which Ward notes is the lowest possible burden, being “just one tick higher than 50 percent chance this happened,” he says.

“What’s very interesting about these cases is [that] it’s often very hard to prove, other than when you go on social media and publicize what you’re doing,” says the attorney, referring to Montague v. Kennard. Otherwise, the case is controlled by “circumstantial evidence,” which also informs the jury’s decision.

Which states still observe alienation of affection?

Only five states allow people to sue for alienation of affection: North Carolina, Utah, Mississippi, South Dakota and Hawaii. According to Ward, it’s “very rarely” pursued by plaintiffs, especially now that every state has “no-fault laws” which allow people to get divorced without proving adultery.

“The law has trended in the direction against having these type of matters brought before the court,” he explains. “Almost every state legislature where there is alienation of affection has made efforts to abolish these civil remedies.”

There is a somewhat similar area still in existence more nationally, which is known as intentional infliction of emotional distress. However, the doctrine is very limited, says Ward, because individuals need to prove “extreme and outrageous conduct.” The vast majority of states have determined that affairs don’t fall under that category, save for some exceptions.

Who could be sued for alienation of affection?

Scorned spouses are not the only people at risk of being sued for alienation of affection in states that allow it, and the doctrine does not require a sexual act. Ward says that anyone who knows about a relationship, knows it’s a good relationship and then seeks to undermine it is technically liable.

That could be anyone from a friend to a mother-in-law. “Same for a psychologist [who says], ‘I know you love him, but he’s not right for you. Long-term, it’s bad for you.’ And this person says, ‘You know what, you’re right,'” Ward explains. “That person may have a cause of action against them.”

He notes that the risk lies in the possibility of using the law “as a sword as opposed to a shield.” The potential breadth of who can get caught up in this type of doctrine is quite large, Ward adds, “Think how far down this could go. It could even be domestic violence counselors.”

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What is the statute of limitations on alienation of affection?

Four of the five observing states assign a three-year statute of limitations to alienation of affection claims. Only Utah stands out, allowing people to sue for four years after the alleged offense.

Ward specifies that the limitation period starts as early as when “the acts that constituted the alienation happened.” Some lower courts originally ruled that the clock should start when the plaintiff found out about the acts, however, the issue was raised to the Supreme Court in North Carolina and the timeline was limited.

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How can social media affect the outcome of alienation of affection cases?

In Montague’s case against Kennard, Ward says social media played “two major roles,” one in terms of actual damages and another on a more psychological level. Addressing the latter, the attorney surmises that the fact of the affair was amplified by the way Kennard treated it online.

“People know that [cheating] happens. They do. They don’t like it, but okay, it happens,” he says. “But when the defendant publicized about it in social media videos talking about how she wanted to have this man’s children and things like that … I have to imagine for any jury that that was salt in a wound.”

Social media resulted in actual damages for Montague, Ward says, “because she was receiving death threats. Her children could see this, read about it, and she was embarrassed to be in places, and she was frightened by this woman’s followers threatening her.”