Divorce is never easy. That’s the simple truth of the matter, even in the best of circumstances. Without question, it can be even more difficult to move on if the end of a marriage was caused by someone other than your spouse. Certainly, there are any number of reasons for a marriage to end. In some states, however, including North Carolina, an ex-spouse may have a cause of action against a third party who contributed to the end of the marriage. This type of claim is called an alienation of affection claim.
What Does “Alienation of Affection” Mean, Anyway?
Essentially, the tort of alienation of affection allows one spouse to sue a third-party (not their spouse but someone else outside of the marriage) for what they assert are wrongful acts that deprive them of the love and affection of their spouse. North Carolina is actually only one of the few states which recognize alienation of affection as a cause of action. While some states may consider marital misconduct where the issue of determining alimony payments is concerned, very few states allow a married person to sue a third party based on that party’s role in ending the marriage. North Carolina is one of those states.
If you’re thinking that this means you can sue your spouse’s paramour if your spouse was having an affair, you are correct. In fact, this is most often the circumstance in which this cause of action is used. That doesn’t always have to be the case, however. In some circumstances, one spouse has sued a meddling in law or an overly assertive friend for actions that they feel led to the end of the marriage. These cases are often more difficult to prove, however.
Let’s take a closer look at the different elements of an alienation of affection claim together.
Examining the Elements of a Claim
For an alienation of affection lawsuit to be successful the individual bringing the lawsuit must prove the following elements:
(1) The two spouses were in a legally valid marriage and had genuine love and affection between them;
(2) The love and affection between the two spouses were destroyed and alienated;
(3) The third-party being sued engaged in wrongful and malicious behavior that caused the destruction and alienation of the love and affection in the marriage;
(4) The wrongful and malicious behavior happened before the separation of the spouses; and
(5) The alienation caused damage to the spouse who is suing (for example, it led to the dissolution of the marriage, legal separation, economic loss, mental harm, etc.).
It goes without saying that to be able to file this type of lawsuit the person bringing the suit must be able to show that the two spouses shared love and affection before the intervention of the third party.
Interestingly, it is also worth noting that the person being sued does not have to be from North Carolina. North Carolina has what is known as a “long arm” statute that allows its courts to reach defendants in other states who do not reside in North Carolina. In alienation of affection cases, North Carolina courts have in the past determined that an out-of-state individual may be liable if intimate acts between the married spouse and the third party occurred in North Carolina or if the out-of-state party places telephones or since emails to a spouse residing in North Carolina.
Ultimately, regardless of where the party being sued resides, proving the claim sufficiently will be necessary for recovery. Let’s look more closely at what type of proof may be necessary.
Proving an Alienation of Affection Claim – What’s Required?
As is the case with so many legal matters, gathering sufficient evidence to support an alienation of affection claim will be necessary. The spouse bringing the suit may want to gather and save items like letters, photos, cards, notes, gifts, and other information helping to establish that genuine love and affection were present in the marriage. It may also help to gather statements from family and friends about the relationship between the two spouses and the loving behaviors they witnessed before the interference of the third party.
Another critical element of the case will be establishing that a third-party engaged in behavior that destroyed the marriage. Certainly, there are any number of reasons why a marriage might fail. Sometimes, people just grow apart. Sometimes there is an addiction that exists that causes one spouse to be unable to be fully present in the marriage. In other cases, the couple simply fights and argues too much, or they grow to want different things. None of these reasons are reasons to sue for alienation of affection. This type of suit is reserved for those marriages where the parties would still be together if not for the third party’s interference and harmful behavior.
Certainly, in the case of an affair, it would be extremely helpful to prove that the spouse and a third party engaged in a sexual relationship during the marriage. In this case, if a sexual relationship during the marriage is established it is presumed that the third party’s behavior of engaging in a physical relationship with a spouse who is married to someone else was malicious and done with the knowledge that it might cause harm to the relationship.
While this type of proof is certainly the most conclusive, other proof can be helpful as well. Some examples might include proof of excessive telephone calls, texts or emails, meetings, gifts given from one to the other, and other similar behaviors. Additionally, if one spouse moves in with a third party immediately after a separation, this type of action may be used as evidence that a relationship was occurring during the marriage and before the separation.
What Type of Defenses May Be Raised?
As with any legal matter, it is essential to understand that although one party will bring the case, the other party will offer defenses. In an alienation of affection case, there will likely be several defenses raised. For example, the third-party defendant might argue that you have invaded their privacy. One example of this might be a circumstance in which a private investigator has been hired to investigate and report on the third party’s behavior. The third-party might attempt to assert that you are engaging in malicious prosecution if you do not have sufficient evidence to support your claim.
Consent is another potential defense. This means that the defendant may argue that both spouses knew of the extramarital affair and consented to its occurrence. An open marriage might be an example of this. Still another defense might be the statute of limitations. In North Carolina, a claim for alienation of affection must be filed within three years from the time the last wrongful act occurred. Otherwise, the statute of limitations, which is essentially a legal term for an “expiration date” or “time limit” will bar the claim. As a result, those who believe they may have a claim should consult an attorney as soon as possible.
What Types of Damages are Available?
As with any type of lawsuit, those who are considering an alienation of affection claim often seek damages. What type of damages might a winning party be entitled to? Essentially, the spouse bringing the case would have to show that he or she was entitled to compensatory damages. Compensatory damages are essentially damages that are intended to compensate or reimburse a party for a financial loss. Some examples of compensatory damages include loss of the other spouse’s income and half of the marital property, emotional distress that requires therapy or prevents a spouse who is harmed from working and earning an income as they otherwise normally would, and other forms of pain and suffering.
Additionally, an alienation of affection actions, the party bringing the case may seek punitive damages. Punitive damages are essentially additional damages intended to punish one party for particularly heinous behavior. Generally, what constitutes especially shocking or heinous behavior will be a matter for determination by the court, and as a result, consulting with an attorney regarding what damages might be available in your particular case is essential.
Although various types of damages may be available in an alienation of affection case, it is important to consider whether or not the person you are suing actually has money. After all, it may not be worth it to pursue time-consuming and stressful litigation only to find out that in the end, you cannot recover an award because the third party you sued has no money or resources available to pay you. In those cases, you may actually spend more money on legal fees than you actually recover from bringing the lawsuit.
Ultimately, pursuing a claim for alienation of affection will not be easy. Typically, bringing a case like this will require a good deal of time, organization of evidence, and effort. Deciding whether or not to bring such a claim involves weighing many factors, and as with so many legal matters, having an attorney on your side who knows and understands the law will be essential. At the Law Office of Dustin McCrary, we’re here for you.
CALL THE LAW OFFICE OF DUSTIN MCCRARY TODAY
Alienation of Affection is a divorce issue that’s somewhat unique to North Carolina – but it will be only one of many issues that you confront as part of this process. Even the most common of divorce issues – property division, child support, child custody – will be subject to state-specific divorce laws. For this reason and many others, you need an attorney on your side who knows and understands that law. Dustin McCrary is that attorney. He’s passionate about helping every client work through the divorce process effectively, so they can move toward a better chapter ahead with optimism. If you’re ready to get started, call today. We look forward to speaking with you soon.