Infidelity in a marriage is never advised. That’s the plain and simple truth. If you have reached the point where infidelity is an issue in your marriage, then you have reached a point where you truly need to spend time thinking through what it is you truly want.  If you want to remain in the marriage, then you should devote the necessary time and energy to truly working through your issues with your spouse and a qualified counselor, who can help you. If you don’t want to remain in the marriage, then you should consider your next steps forward as far as pursuing a divorce.

In all cases, infidelity is ill-advised, but in North Carolina, it can be can be particularly costly for the participating parties. Why? Because North Carolina recognizes grounds for two types of lawsuits – alienation of affection and criminal conversation lawsuits – which can end up not only negatively impacting a divorce case in terms of important issues like child custody and support, but which can also be quite costly in their own right.

Alienation of Affection

North Carolina is somewhat unique among the states in continuing to allow these causes of action, but if you reside in North Carolina, it is important to thoroughly understand what they are, and when they might arise. Under North Carolina law, you may file a lawsuit asserting alienation of affection against any individual who has a caused a married person to suffer the loss of affection from their spouse so long as you can prove there was:

  • Genuine love and affection between spouses who are validly married;
  • The love and affection was alienated and destroyed; and
  • The defendant’s wrongful and malicious act caused the loss of love and affection.

If you feel that you may be confused as your read over those elements, you are likely not alone in that feeling. Many are surprised to discover that in North Carolina, an action can be brought not against the cheating spouse, but against that spouse’s lover – but this is in fact the case. In fact, even if the spouse was the one who pursued the other individual, the spouse who did not engage in the marital misconduct may still have a claim  against that individual, if it can be proven that the person being sued was an active participant who initiated, or encouraged the affair.

This cause of action has been on the books in North Carolina for almost a century, so there are many cases that have established judicial opinions regarding how to prove the above elements.  It is not necessary that you prove that the individual set out with the intent to destroy your marriage; you merely need to show that they acted knowing it would impact your marriage.  One who brings an alienation of affection suit does not need to prove that the marriage was completely perfect and that the couple was madly in love.  All that is required is “some” love and affection between the spouses, and that the love that existed was impacted negatively by the actions of the third party. 

While this suit is often against an individual who was having a romantic affair with a married person, an alienation of affection claim may actually even survive in cases where there is no sexual intercourse.  In fact, the suit doesn’t even have to be against a love interest … it can be against anyone who maliciously interferes and causes loss of love and affection in a marriage.

Criminal Conversation

Criminal conversation, like alienation of affection, is a claim that the spouse who did not engage in the alleged marital misconduct may bring against a third party who was inappropriately involved with his or her spouse. Unlike the case with an alienation of affection claim, however, a claim of criminal conversation requires proof of sexual intercourse outside of the marriage.  Essentially, the spouse bringing the case must prove that:

  • There must be a valid marriage between you and your spouse, and
  • There must be sexual intercourse between your spouse and a third party during the marriage. 

The required elements to bring a criminal conversation claim can be proven by direct or circumstantial evidence. 

Available Defenses to Alienation of Affection and Criminal Conversation Claims

It goes without saying that sometimes, these elements may be somewhat difficult to prove, particularly if there is no evidence that an affair actually occurred. Those who face the prospect of having such a lawsuit filed against them, or against someone that they care for, understandably want to know if there are any defenses available. Indeed, there are several defenses available for an accused to defend against an alienation of affection claim. 

The most often used defenses to alienation of affection claims are that there was no actual love and affection between the married couple, that the third-party individual was unaware of the marriage.  If either of these things can be proven, they are typically enough to establish an effective defense to any alienation of affection claim. Sometimes, the defense of “consent” is also used (perhaps the spouse consented by encouraging the affair for bargaining reasons or the “innocent” spouse is actually having an affair as well. (It should be noted that with respect to criminal conversation claims, however, the defenses of consent or of being unaware that a marriage existed are not available.) The defense of connivance is also available in both types of claims, although it is rarely used.  This type of defense can only be asserted if it can be proven that one spouse essentially “tricked” the other into having an affair.

Another commonly used defense is that there is some statute of limitations barring the suit.  A statute of limitation is a time limit on when you can file a claim, and these limitations are necessary to prevent claims being filed many years after the alleged offense.  For both alienation of affection and criminal conversation claims, the statute of limitations is three years.  A suit will be barred if brought after the three-year period. 

With respect to both alienation of affection and criminal conversation claims, the statute of limitations begins running when the wrongful act is complete, or essentially, when there is destruction or signification reduction in love and affection between the spouses and runs for three years.  Thus, while an affair or other type of relationship may continue for a long period of time, the three-year period does not begin until the alienation of affection is complete.  It is not always easy to determine when “complete” is, however – and if such a claim is brought, this is typically determined by the judge who is overseeing the case.  

A final defense against both alienation of affection and criminal conversation claims is that the couple was already separated at the time the actions in question occurred. North Carolina law provides: “No act of the Defendant shall give rise to a cause of action for alienation or affection or criminal conversation that occurs after the Plaintiff and the Plaintiff’s spouse physically separate with the intent of with Plaintiff or Plaintiff’s spouse that the physical separation remain permanent and an action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the Defendant giving rise to the cause of action.”  Thus, if a couple had already separated with the intent not to resume the marriage, this would serve as a sufficient defense to any alienation of affection claim.

A Note About Jurisdiction

As we have noted, North Carolina is somewhat unique in allowing for these types of claims in instances where marital misconduct has occurred. Many states – most states, in fact, have abolished alienation of affection and criminal conversation claims.  As a result, jurisdictional issues can arise if the affair takes place in another state, if the third party lives outside of North Carolina, or if the affair occurred in North Carolina but the married couple lives outside the state. 

Essentially, in order to bring a claim, the injured spouse must show that the acts causing the alienation of affection or criminal conversation occurred in North Carolina.  Then it is up to a jury to decide whether the claim has merit.  North Carolina courts have held that even though a cause of action for alienation of affection could be the result of several acts in several states, the jury is charged with the task of weighing the evidence to determine which state the injury occurred in.

It should be noted that determining what state laws apply for an alienation of affection claim is often far more difficult than for a criminal conversation claim.  Determining what state laws apply for a criminal conversation claim is easier because the injury is considered to have occurred where the intercourse took place.  Alienation of affection, by contrast, can occur over time and, unlike criminal conversation, there is often no specific date of intercourse to rely upon as a basis for a claim, since intercourse is not required. 

If a couple resides in North Carolina and one spouse cheated in North Carolina with someone who resides outside of the state, a criminal conversation or alienation of claim may still be feasible, as North Carolina’s long-arm statute does allow its courts to have jurisdiction over someone who is not a resident of this state.  However, the court must consider the individual’s due process rights, and must determine whether the contacts the individual has with the state meet the minimum standard by weighing factors such as: quantity of contacts, nature and quality of contacts, source and connection of the cause of action with those contacts, the interest of the forum state, and the convenience to the parties. 

As a result, it is important, before bringing one of these claims, to consult with your attorney and think it through thoroughly. There are many elements to consider, and before you begin to engage in the time and expense of pursuing one of these causes of action, it is wise to spend the time to do so.

Can You Win?

Understandably, spouses who have been hurt by the other spouse’s marital misconduct with another often feel extremely hurt and understandably angry.  In the midst of that emotional pain, bringing one of these claims can seem quite appealing.  After all, that is only human nature.  One question we are often asked by clients considering these claims is – can I win? This is a good question to ask, and our answer often is, yes – but is it worth it?

Because there are only a few states that continue to recognize these claims, and even those that do recognize them have vastly different ways of treating them, it may seem difficult to be able to win such a claim.  While these claims are considered by many to be archaic, the laws in North Carolina are used frequently in family law cases. These claims are winnable, and there are many examples of cases in which plaintiffs have won substantial awards.

The problem, however, is that sometimes, even when a spouse “wins” one of these lawsuits and receives a judgement, the individual against whom the judgement is entered may not have the resources to pay that judgement.  This is not to mention the fact that litigation itself is often time-consuming, stressful, and expensive – particularly claims of this nature that are very adversarial.  Thus, it is important to be aware of the reality that you may expend a good deal of time and money pursuing one of these claims, only to ultimately obtain an award that the defendant can’t pay. As a result, it is truly worth thinking through whether or not bringing one of these claims may ultimately be worth it in the long run.

Call the Law Office of Dustin McCrary Today

If you have been hurt by the relationship that your spouse has had with a third-party, it is understandable that you may have interest in bringing one of these claims. Certainly, in your particular circumstances, bringing such a claim may be warranted and valid. The best way to know is to speak with an attorney who understands the complexities of these laws, and how they might apply to your particular circumstances.

At the Law Office of Dustin S. McCrary, we understand these claims and we understand why some clients might want to bring them. On the other side of the coin, if you believe that your spouse may bring one of these claims against you, we also understand the desire to defend yourself, particularly if you believe that the claim is not warranted. Whatever the case, we encourage you to consult with us so that we, together, can determine the best path forward. We look forward to speaking with you soon.

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