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It’s a simple truth that there are few things that have the potential to devastate a marriage more than an affair. Whether you are the spouse who has had the affair, or the spouse who feels betrayed, on either side of the coin, emotions are volatile and tensions can run high.  Understandably, the spouse who has been the victim of the affair may feel hurt, betrayed, and shocked, while the person having the affair (or contemplating an affair) might feel confused, conflicted, and surprised at their own emotions and actions in many cases.  All of these emotions – and many more – are certainly understandable. If you find yourself in this situation, you should know that you aren’t alone.   Some marriages survive them and others do not, but affairs do happen.

It is certainly true that no legal remedy can take away the pain and feelings of betrayal you may be experiencing after discovering an affair. Whatever emotions you might be feeling are understandable and normal. In North Carolina, however, those who are contemplating (or are involved in) an affair, or those whose spouses have engaged in an affair should be aware that affairs can have significant consequences – not just from an emotional perspective, but from a legal standpoint as well.

While it is true that adultery is still classified as a misdemeanor under North Carolina law, you will rarely find a judge prosecuting someone for adultery under the criminal code.  What some are surprised to discover, however, is that there are two civil causes of action available to those who are the victims of adultery.  In North Carolina, those whose spouses have had an affair may be able to bring civil claims for “criminal conversation” (essentially, a claim that arises when two people are married and one spouse has sex with someone outside of the marriage) or for “alienation of affection”, which is the type of claim we discuss in detail in this article.

What Is “Alienation of Affection”, Anyway?

You may (or may not) have heard of alienation claims, but chances are good that even if you have, you may be a bit unclear on exactly what the grounds are for this type of claim, and what sorts of damages may be available.  This is understandable, as North Carolina is somewhat unique in continuing to make such a claim an option to is residents.  In fact, only six states in the country continue to make these claims available. While they are rare across the country, they are somewhat common in North Carolina – in fact, nearly 200 claims for alienation of affection are filed each year in North Carolina.

In a nutshell, an “alienation of affection” claim is a claim that can be brought when a third party interferes with a marriage, ultimately causing it to end by “alienating” or destroying one spouse’s affection for the other.  It should be noted that these claims are not brought against the spouse engaged in the affair, but instead, are brought against the third party who was “interfering” with the marriage.  Often, the defendant is the adulterous spouse’s lover, but it is not unheard of for family members, counselors, therapists, friends, or religious advisors to be named as defendants too. Essentially, any third party who has actively worked toward or encouraged the destruction of the marital relationship can be named as a defendant in these claims.

What Are the Elements of an Alienation of Affection Claim?

Ultimately in order to prove a claim for alienation of affection a plaintiff must show the following three things:

(1) That a happy marriage existed between the two spouses with genuine love and affection;
(2) That the love and affection which existed at the time the defendant took his or her actions was ultimately alienated and destroyed; and
(3) That the wrongful and malicious acts committed by the defendant resulted in the alienation of the love and affection that previously existed.

While there are only three elements to an alienation of affection claim, those considering bringing such a claim should realize that proving those elements is not always easy. It can often be hard to prove intentions, and it is important to thoroughly evaluate the evidence you believe you have prior to bringing such a claim.  A family law attorney with knowledge and experience will be able to advise you as to the evidence in your particular claim, as well as the likelihood of success in obtaining an award should you choose to file it.

How Long Do I Have to Bring an Alienation of Affection Claim?

These claims must be brought within a three-year statute of limitations. This means, with respect to an alienation of affection claim, that the “injury” actually occurs and the three-year time limit begins once the relationship has effectively been destroyed. Determining when a relationship was actually damaged beyond repair can be difficult. Ultimately, if a case goes to trial, the judge or jury will act as the factfinder to determine when the alienation of affection was complete. This will involve weighing testimony and evidence to make a determination.

What if I Have Had an Alienation of Affection Claim Filed Against Me?  Do I Have Any Defenses?

Certainly, there are potential defenses to an alienation of affection claim. Defenses most commonly asserted include:

(1) The assertion that a lack of love and affection already existed in the marriage. This defense requires evidence that the marriage was already unhappy prior to the intervention of the third-party. This may include evidence of ongoing fighting, reports of domestic violence, lack of time together, previous separations, and other similar evidence that tends to show unhappiness.
(2) The argument that the plaintiff consented to the relationship with the third-party. This is a less commonly asserted defense, but may be possible in cases of open marriage or spouse swapping relationships.
(3) The defense of connivance: this is essentially the argument that the spouse was tricked into having an affair leading to the end of the marriage. This is a rarely asserted defense.
(4) The defense that acts which occurred after the separation cannot serve as the basis for an alienation claim. Essentially, this defense asserts that if the parties were already legally separated then the affection was already “alienated” and the basis for the claim does not exist.
(5) The defense of poverty – essentially the defense that the defendant would be financially unable to pay the claim if an award were granted.

Is it Worth it to File an Alienation of Affection Claim?

Certainly, the end of a marriage can cause feelings of loss, grief, resentment, and anger.  Understandably, it can even create a desire for feelings of revenge.  These feelings are normal, but it would be unwise to allow them to dictate your decisions when it comes to deciding whether or not to file a claim of this nature.  As with any legal matter, bringing an alienation of affection claim is often a time-consuming and expensive ordeal.  It will require retaining an attorney, gathering evidence, and – if it goes to trial, publicly airing your private affairs.  All of these things can cause stress during an already stressful and emotional time in your life.  It is, therefore, important to ask whether bringing a claim is worth enduring that stress.  Of course, you are the only one who can answer this question, but it is an important question to ask.

Additionally, when considering whether or not to bring one of these claims, it is important to ask yourself whether the third party that you intend on suing would even be able to pay an award if an award were granted.  While in some cases, significant awards are granted and paid, in many other cases, the defendants simply do not have the financial means to do so. In those cases, while you may receive a “victory” in the form of a decision in your favor, it is not necessarily a victory that will translate to money in your bank account.  Thinking this through before deciding whether to invest your time and energy in bringing a lawsuit is important.

Do I Need an Attorney?

Whether you believe that a third party has caused the end of your marital relationship and you are considering filing an alienation of affection claim, or whether an alienation of affection claim has been filed against you, it is highly advisable to consult with and retain the services of a knowledgeable and experienced attorney in these matters.  An attorney who understands the law will be not only be able to advise you as to the strength of your particular case, but will also be able to help with matters such as:

  • Conducting an asset search of any particular defendants for purposes of determining whether or not that defendant would likely be able to pay an award if it were granted;
  • Talk you through the various elements of a claim and what proof will be necessary each step of the way;
  • Help you to utilize a potential alienation of affection claim as leverage in your divorce case, even if you ultimately decide not to pursue the matter to its conclusion;
  • Assist you with complex legal elements of your claim that you might otherwise overlook or misunderstand.

While retaining an attorney is certainly an investment, it is an investment well worth making, particularly in emotionally charged and legally complex matters.

Call The Law Office of Dustin S. McCrary Today

At The Law Office of Dustin S. McCrary, family law is our passion.  We understand the complexities of family law, and the best strategies to pursue on your behalf.  Even better, we have years of experience successfully applying that knowledge in the courtroom.  If you are considering bringing an alienation of affection claim, or if a claim has been brought against you, we encourage you call our office.  We would welcome the opportunity to speak with you and to learn your particular circumstances, as well as how we might be able to help.  Helping clients move through the divorce process in all of its elements, and to emerge on the other side in a better place is our goal, and we would love to help you do exactly that.  Call us today.  We look forward to speaking with you soon.

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