You cannot sue for alienation of affection in New Mexico. The state Supreme Court abolished the claim on January 26, 2026, in Butterworth v. Jackson, and no one in New Mexico can now be sued for damaging the emotional bond of a marriage.1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections If a spouse has had an affair or left the marriage for someone else, your legal path forward is divorce, not a lawsuit against the third party.
What the Supreme Court Ruled
In Butterworth v. Jackson (Case No. S-1-SC-40623), the court overturned a 1923 decision, Birchfield v. Birchfield, that had allowed New Mexico spouses to sue outsiders for destroying the love and companionship of a marriage.1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections Chief Justice David K. Thomson, writing for the court, concluded that the tort and the proof it demands are “irreconcilable” with the legal developments that followed, pointing in particular to New Mexico’s no-fault divorce framework. Because state policy avoids inquiry into what went wrong in a marriage, a tort built on exactly that inquiry could no longer stand.
The court was blunt about the alternative. If your spouse no longer loves you, the remedy is divorce and, where appropriate, a claim for alimony.
What Happens If You File One Anyway
A court will dismiss it. A defendant would move to dismiss under New Mexico Rule 1-012(B)(6), which lets a judge throw out a complaint that does not state a claim the law recognizes.2Westlaw. New Mexico Rule 1-012 – Defenses and Objections The judge would cite Butterworth and end the case before trial.
The exposure doesn’t stop at losing. Rule 1-011 lets courts sanction anyone who files a pleading not supported by existing law or a reasonable argument to change it. A claim the state Supreme Court has just abolished is hard to defend as anything other than frivolous. Sanctions can include the other side’s attorney fees and a monetary penalty. Civil defense attorneys in New Mexico typically bill between $180 and $600 per hour, so even a straightforward motion to dismiss can produce a bill of several thousand dollars that the person who filed ends up paying.
Can You Sue Under a Different Legal Theory?
Probably not. New Mexico courts are skeptical of any tort claim that reduces to “someone interfered with my marriage.”
Intentional infliction of emotional distress is sometimes raised as a workaround. That claim requires conduct so outrageous it goes beyond all bounds of decency, and while New Mexico recognizes it in other contexts, the Supreme Court was explicit in Butterworth that the remedy for losing a spouse’s affection is divorce rather than a tort lawsuit.1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections An emotional distress claim built entirely on an affair would likely be treated as an attempt to revive the abolished tort under a new label.
Loss of consortium is another theory people ask about. It covers the loss of a loved one’s companionship caused by a physical injury or wrongful death. The Supreme Court stated directly that loss of consortium principles do not support alienation of affection claims.1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections
Does an Affair Affect the Divorce Itself?
Mostly, no. New Mexico’s divorce system is built around no-fault principles, and the rules on property and support largely ignore who did what to whom.
Grounds
You can divorce in New Mexico on four grounds: incompatibility, cruel and inhuman treatment, adultery, and abandonment.3Justia Law. New Mexico Statutes Section 40-4-1 – Dissolution of Marriage Incompatibility is the no-fault option and the one most divorces use. Adultery can be cited, but courts have held that fault doesn’t change the outcome when incompatibility exists.
Property Division
New Mexico is a community property state. Assets and debts acquired during the marriage belong equally to both spouses, regardless of who earned the paycheck, and courts divide community property in a manner that is just and equitable. In practice that almost always means a roughly equal split.4Justia Law. New Mexico Statutes Section 40-4-7 – Proceedings; Spousal Support An affair does not change this. New Mexico courts have held for more than a century that a spouse’s share of community property is not forfeited by marital misconduct.
Spousal Support
The factors a court weighs when awarding spousal support include each spouse’s age and health, current and future earning capacity, efforts to find employment, the standard of living during the marriage, the length of the marriage, and the value of property each spouse received.4Justia Law. New Mexico Statutes Section 40-4-7 – Proceedings; Spousal Support Infidelity and marital misconduct are not on the list. Spousal support in New Mexico addresses economic imbalance between the parties; it is not a tool for punishing bad behavior.
What About Suing in Another State?
A small group of states still recognize alienation of affection. North Carolina is the most active, with cases regularly producing six- and seven-figure verdicts. Hawaii, Mississippi, South Dakota, and Utah also still recognize the tort, though cases are much rarer. Illinois has it on the books but has significantly narrowed how it applies.
Jurisdiction is the catch. Having been married in New Mexico or living here now does not open a courthouse door in a state that still allows the claim. The affair, the marriage, or the defendant’s residence would need a meaningful tie to that state before its courts could hear the case.
Don’t Rely on Older Summaries Citing Sears v. Sears
Some legal websites still cite Sears v. Sears, 110 N.M. 651 (1990), as the case that ended alienation of affection in New Mexico. That is wrong. The claim was recognized from 1923 until January 2026, and the case that abolished it is Butterworth v. Jackson, S-1-SC-40623 (2026).1New Mexico Courts. NM Supreme Court Issues Opinion Abolishing Lawsuits for Alienation of Affections If you are reading older material, check it against the current ruling before acting on it.