Can You Sue Your Husband's Mistress? What a Divorce Lawyer Told Me

I had a divorce lawyer on the show this week, and about ten minutes in she told me something I didn't know was legal anywhere in this country. In North Carolina, a wife can sue her husband's mistress. Not the husband. The other woman. There's an entire civil action built for it, and Nicole Sodoma, who's practiced family law for 25 years, walked me through exactly how it works.

I'll get to the lawsuit, because it's wild. But the conversation that stayed with me afterward wasn't about suing anyone. It was about why marriages actually fall apart, and how rarely the affair is the real answer.

Can you sue your husband's mistress in North Carolina?

Short answer: yes. It's called alienation of affection, and North Carolina is one of only six states that still recognizes it. You don't sue your spouse. You sue the third party you say broke up your marriage. To have a claim, you have to show there was a genuinely loving marriage, and that the other person's actions were a controlling and effective cause of it ending. Not the only cause. The biggest one.

There's a companion action with a strange name, criminal conversation, and despite the name it isn't criminal at all. It just requires proof that sex actually happened. Nicole described the kind of evidence that shows up in these cases, and it's exactly what you'd imagine: hotel receipts, a key, surveillance going in and coming out, sometimes a pregnancy.

Here's the catch she was quick to point out. You can have the best case in the world and be the worst witness in the room. These usually go in front of a jury, and if the jury doesn't like you, or decides you were a bad spouse, you might win and still walk away with a dollar. The defense is often that the marriage was already broken, in which case the cheating spouse becomes the star witness against their own wife or husband. Lawyers call these heart balm torts, and most won't take them on contingency because they get that messy.

Why infidelity is usually a symptom, not the cause

Nicole polled a hundred of her own clients, and adultery landed in the top three reasons for divorce. But she refuses to put a hard number on it, because in her experience the affair is almost never the thing that actually ended the marriage. It's the thing that finally made it impossible to ignore.

Underneath it, she says, there's usually a long, quiet breakdown in communication. She used an analogy I loved: we work on everything. We hire coaches, we go to the nutritionist, we grind on our careers, we track our kids' report cards. The one thing we never work on is the marriage. And the moment someone suggests actually working on it, the assumption is that something must already be broken.

I talk about communication on this show until I'm blue in the face, so hearing a lawyer who's sat through thousands of these say the same thing gave me a bit more conviction that I know what I’m talking about. When the communication goes, everything else follows.

The truth about who files for divorce

You've probably seen the stat that women file for divorce around 70% of the time, usually quoted by someone online arguing that women play the victim while they're the ones pulling the trigger. I asked Nicole about it, and her reframe was the most useful thing I've heard on the subject.

In most states, there's almost no strategic advantage to filing first. So a lot of the time, women file simply to start the clock and move the case along. Someone has to get the ball legally rolling. That number doesn't prove leaving was her idea. It often just proves she's the one handling it.

The hero, the villain, and the box we put people in

Nicole said something that could describe the entire comment section of the internet: in almost every divorce, there's a hero and a villain, an aggressor and a victim. And the second infidelity enters the picture, the person who cheated gets dropped into a box. Bad person. No morals. Character flaw baked into their DNA. Carry it forever.

Here's what I always say, and I said it to her. Nobody wakes up and schedules an affair between the gym and a work report. It happens inside a story that started long before anyone did anything. That's not an excuse for it. It's context. And context is the only thing that ever actually helps a person understand how they got somewhere they swore they'd never be.

The one piece of advice I wrote down

I asked Nicole for her best advice for someone standing at the edge of this decision. She pointed to Viktor Frankl's Man's Search for Meaning and the idea that between what happens to you and how you respond, there is a space. In that space, you get to choose. Your response is the thing you can actually control.

Then she said the line that connected the whole conversation for me: you are the only one in your way. If you don't know what you want yet, give yourself some grace and don't force the decision. But eventually, you do have to make one.

Frequently Asked Questions

Can you sue your spouse's affair partner?

In most states, no. But six states still recognize alienation of affection, including North Carolina, which lets a spouse sue the third party they say broke up the marriage. The laws vary widely from state to state, so it's worth asking an attorney where you live.

Is infidelity the main cause of divorce?

Not usually, according to family law attorney Nicole Sodoma. Adultery often shows up among the top reasons, but she sees it as a symptom of a longer breakdown, most often in communication, rather than the root cause on its own.

Do women file for divorce more than men?

Yes. Research puts it around 70%. But filing first rarely creates a legal advantage, so women often file simply to start the process, not necessarily because leaving was their idea.

Does an affair affect a divorce settlement?

Less than most people want it to. The division of assets, support, and custody tend to get decided on the same terms with or without an affair. Chasing punishment for the affair usually just adds emotion, time, and legal fees.

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