What is a heart balm tort? The lawsuit that can compensate for heartbreak : Planet Money : NPR

SYLVIE DOUGLIS, BYLINE: This is PLANET MONEY from NPR.

(SOUNDBITE OF COIN SPINNING)

ERIKA BERAS, HOST:

You can think of what Keith King does as, like, breakdancing, but on a bike.

KEITH KING: I mean, one of my all-time favorites was always a trick known as the double decade. And that’s where you – the bicycle goes up on the back wheel, and you go around the top of the bike twice before you set the bike back down.

BERAS: Whoa.

SARAH GONZALEZ, HOST:

Keith is a BMX rider. He started doing it in the ’80s.

KING: I was with the sport when it would be considered underground or in its infancy. As the sport grew, I was right there.

GONZALEZ: And he doesn’t just ride. He runs a BMX stunt company out of North Carolina. They perform everywhere – halftime at NBA games, the Alaska State Fair.

BERAS: And one day about 15 years ago, while he’s trying to line up a gig, he meets Danielle. And just a couple months later, he’s like, I need to marry her. And he didn’t just drop to a knee. He took her on a helicopter ride.

KING: So what I did is I took all my trucks and trailers, and I painted on the top of the trailers – I had five of them. I put Danielle, will you marry me? And then I invited her family, and I had my mom and dad there.

BERAS: This is so complicated.

GONZALEZ: They get married, and his wife starts working with him at his BMX stunt company.

KING: I handled the logistics and the moving parts of everything needed to be everywhere, and she helped sell the show and promote the show. I felt like we were kind of like a power couple.

BERAS: They had a little girl, lived in a nice house, went to church together, and his wife was one of those people that’s always posting on Facebook like, oh, look at my amazing life. And the BMX business was growing. Keith says things were great.

At what point does it seem like things start not being so great?

KING: I guess it would be whenever she crossed paths with him.

GONZALEZ: With him. This show is not about BMX. It’s about infidelity. The him was the other man.

KING: I came across these messages. And I remember I jumped to my feet. I’m like, who are you talking to like this? You’re my wife.

BERAS: What kind of messages were they?

KING: Oh, you know, I liked how tall you were. What do you look like in a bikini? It was very flirtatious. And I was like, who is this person? And so I called him from her phone. And this is all I said to him ’cause I was mad. And you can bleep it out. I said, don’t you ever [expletive] call my wife again. And that was it. I thought it was done. Like, I thought it was, like, a near miss.

BERAS: It was not done. It progressed. His wife had an affair with this guy, and Keith and his wife’s marriage fell apart. And look, this kind of thing, it happens all the time. But when it happened to Keith King, he was devastated. And he couldn’t get it out of his mind that if it weren’t for this guy, if he hadn’t been around, if he hadn’t so actively pursued his wife, he, Keith, and his wife would still be happily married.

GONZALEZ: Then one day, Keith is scrolling on Facebook, and he’s seeing updates from an old high school friend. It seems like she is also going through some stuff. So Keith reaches out to her, and he finds out that her spouse also cheated.

KING: And she’s like, yeah, I’m suing the person that my husband cheated with. I’m suing them. I’m like, what? And she’s like, yeah, you know, I’m suing them for alienation of affection, and that’s what I’m doing. And I was just like, what in the world are you talking about?

BERAS: Yeah. What is she talking about? Hello, and welcome to PLANET MONEY. I’m Erika Beras.

GONZALEZ: I’m Sarah Gonzalez, and this show is about messy relationships and what happens when they meet a very old type of lawsuit.

BERAS: There are a lot of examples in life where if someone harms you, you have the option to sue them. But you can’t sue someone for breaking your heart, right?

GONZALEZ: Except in some states, you kind of can. You can actually sue someone, like the him or the her, for meddling in your marriage.

BERAS: Today on the show, what are these lawsuits? Where do they come from? And what happens when Keith files one of them to deal with the most important economic entanglement of his life, his marriage?

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BERAS: Pretty soon after Keith talked to that old friend and learned about the option to sue, he went for it. He sued the man his wife had had an affair with, blaming him for breaking up his marriage.

GONZALEZ: This kind of lawsuit is called a heart balm tort. And you maybe know what a tort is. It’s when someone is injured and they sue for damages, typically cash.

BERAS: Think the lawsuit over McDonald’s hot coffee. That’s a tort.

GONZALEZ: Right. A heart balm tort is like that, but for love.

JILL HASDAY: Heart balm – H-E-A-R-T B-A-L-M. Like, think about, like, chapstick or something – balm. It’s supposed to be like it’s healing a broken heart.

GONZALEZ: Yeah, like a balm for your heart. This is Jill Hasday, a law professor at the University of Minnesota, and she is kind of like a heart balm expert. She wrote about them in this book called “Intimate Lies And The Law.”

BERAS: Heart balm torts, despite their name, despite this image of it being used to heal a broken heart, they actually look at marriage in this very unromantic way. They look at it in an economic way.

HASDAY: Marriage is, for most people, the most important economic decision of their lives. In general, if you don’t have a prenup, earnings during the marriage are marital property, with an assumption of a 50/50 split at divorce. So it’s a tremendous economic interweaving. People often own homes, which is their – most people’s biggest asset. They often own those together. I mean, it just – it is an economic relationship in addition to everything else.

BERAS: If you go back, back, back in time, the economic part of marriage was even more pronounced.

GONZALEZ: Heart balm torts date back to the 1600s to English common law. Then they were imported to the U.S. and by the early 1900s, this is how heart balm torts were often used. Say a woman was engaged to a man, but he deceived her somehow. Like, maybe he was already married to a woman in a neighboring town. The deceived woman could be like, oh, no, no, no, you are not going to get away with that. And she’d sue the would-have-been husband claiming a breach of promise, like, essentially, a broken contract. That is the heart balm tort.

HASDAY: You have to keep in mind that the social and economic pressure to get married, especially for women, is almost overwhelming. What I like about heart balm torts is they’re recognizing the world women are actually in.

BERAS: Right, the world they were in back then.

HASDAY: That someone who promises to marry you and then doesn’t do – especially if they never meant it in the first place, has inflicted an enormous injury, sometimes a life-altering injury where that woman will never have the life she could have had if that man had just left her alone. It recognizes women’s economic desperation.

BERAS: Yeah. Back then, if a woman was engaged and then the engagement fell through, that could affect her reputation. She might never get married. And for most women, marriage was the main way for them to find economic security.

GONZALEZ: Yeah. So these heart balm lawsuits were a form of protection, like some real back-in-the-day kind of stuff.

HASDAY: Right. So how is it antiquated? I think there’s more than one way.

(LAUGHTER)

HASDAY: So one way it’s antiquated is it’s very much like women are perceived in a property framework where they’re being transferred from father to husband.

BERAS: That kind of heart balm suit, where a man would get sued for leaving a woman before they got to the altar, it wasn’t the only kind. Some of the other heart balm suits got steamy. There’s one that lets people sue for seduction. Like, if you were seduced, you could say, how dare you seduce me? Everyone’s going to judge me now, and you owe me for that. And then there’s one called criminal conversation.

HASDAY: The joke about criminal conversation is that it’s not criminal, and it’s not conversation. That’s how you can remember it.

BERAS: That’s good.

HASDAY: It’s not criminal. It’s not conversation.

BERAS: It’s sex. That’s what it is – just sex. Essentially, you had sex with my wife. It was often the husband suing.

GONZALEZ: And then finally, there is the heart balm talk called alienation of affection. That is when you can sue someone who interferes in your marriage – a so-called marital interloper.

BERAS: By the 1920s, heart balm lawsuits are getting tons of attention. It’s a time when there’s all these big changes happening. Like there’s women’s suffrage. More women are getting jobs.

GONZALEZ: Great time.

BERAS: And marriage changes, too. It starts looking more like how it does now. And people are talking about this idea called companionate marriage.

GONZALEZ: Right. Right. Like, you’re choosing to be companions now – right? – ’cause, like, you have the same interests, or whatever we get married for these days.

BERAS: Yep. Exactly. But then whenever there was a big heart balm tort, the tabloids loved it. There were big splashy headlines like “Congressman Herrick Sued For Heart Balm” and “Winstead Girl Sues for $10,000 Heart Balm.”

GONZALEZ: The famous silent film star Clara Bow had to pay 30,000 smackers – that’s what she called them – after she went on a date with a married man.

BERAS: Scandalous

GONZALEZ: Scandal.

BERAS: And, of course, people loved reading and talking about these stories. People love mess, right? They love drama.

GONZALEZ: They love it. But then there was a backlash. Some people didn’t like that women were filing heart balm suits. In those newspaper stories, you start to see the stereotype of the unscrupulous woman going after the innocent man.

BERAS: The women are called gold diggers. Yep. This is when the term gold digger really takes off.

GONZALEZ: Wild.

BERAS: And that’s one of the arguments states used to start outlawing heart balms.

HASDAY: The first state is Indiana in 1935.

BERAS: Why Indiana?

HASDAY: Roberta West Nicholson.

BERAS: Roberta West Nicholson was the state’s only female legislator, and she said things like, no self-respecting woman would start a proceeding of the sort, and we suspect, and rightly, that the affliction is not so much an aching heart as an itching palm.

GONZALEZ: Whew.

HASDAY: There’s a wave of states. And then there’s, I think, what they sometimes call, like, a long tail, getting rid and getting rid until you just don’t see these cases, except in North Carolina, which has a robust alienation of affections case law.

BERAS: Yes, North Carolina, where Keith King lives. All these years later in North Carolina, there are still, like, 200 harp balm lawsuits filed every year, and most of them are alienation of affection suits. You alienated my spouse, so I’m going to sue the lover. You can even sue a meddling mother-in-law.

GONZALEZ: Watch out, mother-in-laws. OK. It’s not just North Carolina that’s still allows heart balm lawsuits. A few states allow it. But North Carolina is the only place where heart balms get filed, like, all the time.

BERAS: Why North Carolina?

HASDAY: My hypothesis is the reason is there’s some lawyers who know how to do these cases. I’m not saying it’s the only reason, but having lawyers who are interested in bringing it is an important reason.

GONZALEZ: Yeah. Lawyers, of course they want lawsuits.

BERAS: Yeah. Now, there have been attempts in North Carolina to get rid of heart balm torts. And last year, the speaker of the House was sued by an assistant school principal because the speaker of the House allegedly slept with the principal’s wife. After that, the speaker questioned why that law was even still on the books.

GONZALEZ: Right. Of course you did. It is a, you know, decent question. Like, should states really be judging some random third party, like, the him or the her, the marital interloper? ‘Cause think about it, in divorce cases, for example, which are totally different from heart balm cases, you don’t have to prove that someone did something, quote-unquote, “bad” in order to get divorced. We have no-fault divorces in every state now.

BERAS: Yeah. And after reading over dozens of present-day North Carolina alienation of affection cases, it seems like the way they’re used is less about pulling the one economic lever available to you. It feels like they’re more about people trying to get emotional validation, but doing it in this very messy public way that shames all the parties involved.

HASDAY: I guess I’m personally of two minds about alienation of affections. On the one hand, I think there can be wrongful conduct that does cause serious emotional injury. I think the law generally recognizes too little emotional injury rather than too much. So that’s to be said in favor of alienation of affections. But on the other hand, it can be denying the agency of their spouse, and it can seem misdirected.

GONZALEZ: Right. Like, according to these lawsuits, the wife or the husband, whoever allowed the meddler in, is just, like, an innocent bystander, not someone who made a choice to cheat for whatever reason they might have had.

BERAS: After the break, how Keith King’s case actually plays out in court.

(SOUNDBITE OF DANIEL ANDREW BALIS, ET AL.’S “CHURCH OF THE BROWN”)

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BERAS: After Keith King learned about heart balms, he hired a mother-daughter legal team and filed a lawsuit against the man his wife had had an affair with.

What did you think was going to happen when you filed the suit?

KING: I thought that he would just go away at that point. My attorneys – I mean, I remember them telling me, like, you know, we think it will probably be settled out of court. And so I was like, well, if I get anything out of it, at least I’ll get, like, attorney fees paid or something like that.

GONZALEZ: It did not settle out of court, and Keith took the lawsuit pretty seriously.

KING: I wore a suit and tie and everything to court every day, and I was like, oh, all these attorneys have these little pull file carts. You know what I’m talking? They have their little file carts on wheels. So I got me a file card on wheels. I put all my binders in it.

BERAS: Keith was ready. His binders were full of proof, he says – evidence – because Keith, or really his lawyers, weirdly had to prove that Keith and his ex-wife had a happy, loving marriage. So he showed things like the two of them volunteered together. They were intimate. He pointed to Facebook posts where his ex-wife talked about how she had the best husband ever. And the man he was suing? He was in the courtroom also.

KING: He’s dressed like he’s going to a nightclub, wearing Van shoes in court. And I’m sitting there thinking like, I’m the BMX guy. I should be the one in here with Vans shoes.

GONZALEZ: All right. Keith also had to show proof that his wife and the other man had been intimate in the state of North Carolina. And it’s all noted in the court record – hotels, call logs, printouts of text messages.

KING: One of the things that you have to prove is that the marriage is in good standing, and this person did something malicious to destroy your marriage. And one of our big bullets was, is we had all these text messages. And she was going back and forth with the girlfriends, and she’s like, if it wasn’t for him, me and Keith would be fine.

BERAS: Everyone takes the stand – Keith, the other man, the ex-wife. Friends of theirs testify. A psychologist who had diagnosed Keith with post-traumatic stress disorder was there. And the other big thing – there had to be proof of economic distress. Keith and his wife had run a company together. They both earned a living off of the business. So Keith’s lawyers brought in a forensic economist who assessed and forecast what it would cost to replace his wife in the business and also looked at what it would cost to replace her, quote, “household services,” things like food preparation and laundry.

GONZALEZ: This is kind of unusual, right? Like, Keith’s lawyers are trying to get money from some other guy based on the unpaid labor of the ex-wife.

KING: I never said ever to my attorney, I want this much money. I want this much, that much. But it wasn’t until my attorney addressed the judge like this is what we think the damages are – I didn’t realize that dollar amount.

BERAS: Keith may not have had a number, but his lawyers sure did. They stand up in court and share their math with the judge, what the dissolution of the marriage will long-term cost Keith’s business – medical costs, the cost of long-term weekly therapy for the PTSD the other man caused, compensatory damages.

KING: So I’m sitting there, like, trying to add this all up in my head. I’m like, holy crap. I had no clue. And the judge just looked up, and he goes, you know what? I agree with your damages. I was like, oh, my gosh.

GONZALEZ: The damages – $8.8 million. That is how much this guy would have to pay Keith.

BERAS: The judge writes this long decision summing up his view of the case. He finds that the couple had genuine love, affection and companionship in their marriage and that the other man exhibited behavior that was reprehensible in both conduct and motive because the other man did things like rented a place nearby when Keith and his family were on a family trip. He called the wife nonstop, stayed at their home while their daughter was there but Keith was out of town.

GONZALEZ: And with his decision, the judge essentially put a price on the dissolution of Keith’s marriage, including Keith’s, quote, “shame and humiliation and loss of love.”

BERAS: So do you have $8.8 million now?

KING: No. I don’t.

BERAS: Have you gotten any money from this?

KING: No. I’ve not got anything.

GONZALEZ: Right, yeah, because it is one thing to be awarded $8.8 million and another thing to collect it. The other man actually filed for bankruptcy after the lawsuit. Now, that doesn’t make his debt go away, but unless he gets a bunch of money one day, Keith has nothing to collect on.

BERAS: And we reached out to the man Keith sued and Keith’s ex-wife. They’re married now, but they didn’t want to talk.

GONZALEZ: Meanwhile, Keith is in debt to the lawyers who represented him. He owes them tens of thousands of dollars, and there is no guarantee that the man he sued will ever pay him anything.

BERAS: So Keith got his heart broken and his family split apart. He fought against it in all the ways he knew how. And then he tried to apply an old remedy to his present-day situation. He wanted relief, a balm for his broken marriage.

You went through all of this? This does not sound like it was easy. It sounds like it was actually probably very emotionally difficult. Do you think it was worth it?

KING: I say yeah. At that time in my life, the most precious thing to me was my family. And I feel like he’s a thief. And he took that from me. And call it revenge, or you can call it whatever you want to. I don’t think he will ever in his lifetime forget that he took what he took from me. So, yeah. It’s worth it to me.

BERAS: Heart balm suits came about when marriage was a largely economic institution. They were a way of compensating for emotional and economic harm. But what Keith really, really wanted was for his family to get back together. He wanted things to be the way they were before, and that is something the law just can’t make happen.

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BERAS: Coming up on PLANET MONEY.

BECCA PLATSKY: It’s like true crime without the murder.

BERAS: Becca Platsky hosts the podcast “Corporate Gossip” with her brother. They tell business stories but with the tone of a reality TV show.

PLATSKY: I would love a world in which we can go from talking about who was cast on “Real Housewives Of New York” in one breath and then, in the next breath, talk about regulatory capture and the impacts of deregulation on airports. And, you know – so that’s kind of my dream.

BERAS: The PLANET MONEY team hands out valentines to the things we love most right now. That’s next week on the show.

GONZALEZ: This episode was produced by Emma Peaslee and edited by Molly Messick. Sierra Juarez fact-checked the episode, and it was engineered by Gilly Moon. Alex Goldmark is our executive producer. I’m Sarah Gonzalez.

BERAS: I’m Erika Beras. This is NPR. Thanks for listening.

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