Infidelity in a marriage can be very costly for the participating parties in North Carolina. Even when the innocent spouse does not file a suit, the threat of a lawsuit could give them the advantage when it comes to negotiations when divorcing.  There have been many cases that have resulted in large payouts for the innocent spouse, whether because they sued for alienation of affection or criminal conversation, or just used the infidelity as a bargaining tool.  The spouse who strayed may want to continue the relationship with the new person and a lawsuit could put that relationship in jeopardy.  Additionally, court records are available to the public so the cheating spouse may be more willing to defer to the innocent spouse’s wishes to avoid publicity.

Alienation of Affection: What is it?

Under North Carolina law, you may sue 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.

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.  You also do not have to prove that your marriage was completely perfect and that you were madly in love.  All that is required is “some” love and affection between you and your spouse.  Even if your spouse was the one who pursued the individual, you still have a claim if you can prove the person being sued was an active participant, initiated, or encouraged the affair.

While this suit is often against a spouse’s mistress, an alienation of affection claim will survive even if 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.

Defenses to Alienation of Affection

There are many defenses available for an accused to defend against an alienation of affection claim.  The most often used defenses are that there was no actual love and affection between the married couple, the individual was unaware of the marriage, or there is some statute of limitations barring the suit.  Another defense is consent (perhaps the spouse consented by encouraging the affair for bargaining reasons or the “innocent” spouse is actually having an affair themselves).  Additionally, the defense of connivance is also available.  This defense is used if your spouse tricks you into having an affair and the person you had the affair with can raise this defense if they are sued.  Finally, there is the defense that there was a separation prior to the alienation.  Under a 2009 North Carolina law, “no act of the Defendant shall give rise to a course of action for alienation of affection or criminal conversation that occurs after the Plaintiff and the Plaintiff’s spouse physically separate with the intent of either the Plaintiff or the Plaintiff’s spouse that the physical separation remain permanent.”

Criminal Conversation: What is it?

Unlike alienation of affection, a claim of criminal conversation requires proof of sexual intercourse outside of the marriage.  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.  This can be proved by direct or circumstantial evidence.

Defenses to Criminal Conversation

As with alienation of affection, the defense that there was a separation prior to the act is available, as well as the defense of connivance and the statute of limitations defense.  However, the defenses that the defendant did not know of the marriage, that the marriage was already unhappy, or the defense of consent are not available.  The lack of available defenses makes it much easier for bringing a successful claim of criminal conversation against a third party.

Date of Separation

One of the most important dates regarding alienation of affection or criminal conversation is the date of separation.  Conduct after the date of separation, while not a basis for an action alone, can have an impact on the case.  The judge may consider this conduct if it corroborates conduct that happened before the date of separation.  The judge may also consider the conduct after the separation date if the married couple decides to reconcile or does not intend to remain separated.  However, if the couple is separated and does not intend to reconcile, then the post-separation conduct is irrelevant and cannot be the basis for a claim.

Statute of Limitations

A statute of limitation is a time limit on when you can file a claim.  This is necessary to prevent a claim being filed many years after the alleged offense.  For both alienation of affection and criminal conversation, the statute of limitations is three years.  A suit will be barred if brought after the three-year period.  The time starts ticking in an alienation of affection case when the wrongful act is complete, so when there is destruction or signification reduction in love and affection from your spouse.  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.  In a trial, a judge or jury will determine completion by weighing testimony and evidence.  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.”  Basically, the acts must occur prior to separation and must be brought within three years of the last act of the Defendant.  Awareness of the affair is not factored in with regard to the statutory period.  If there was an affair 10 years ago but you just found out about it recently, you have no case against the paramour because the statute of limitations has run out.

Jurisdiction

Unlike North Carolina, most states have abolished alienation of affection and criminal conversation.  Because of this, jurisdictional issues can arise if the affair takes place in another state, the third party lives outside of North Carolina, or if the affair occurred in North Carolina but you and your spouse live outside the state.  In order to bring a claim, you 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.  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.

Determining what state laws apply for an alienation of affection claim is much more difficult than for a criminal conversation claim.  Determining what state laws apply for a criminal conversation claim is easier because the injury occurs where the intercourse took place.  Alienation can occur over time and, unlike criminal conversation, there is no date stamp for intercourse since intercourse is not required.  But, so long as you can prove that the alienation or criminal conversation happened in North Carolina, you may still have a claim even if the affair also took place in other states that no longer recognize such claims.

If you and your spouse reside in North Carolina and your spouse cheated on you in North Carolina with someone who resides outside of the state, you still may be able to sue them.  North Carolina’s long-arm statute allows our courts to have jurisdiction over someone who is not a resident of this state, so long as the individual has sufficient minimum contacts with this state.  However, the court must consider the individual’s due process rights.  The court 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.  Generally, mail, email and telephone contact with someone in North Carolina is enough to prove minimum contacts.

Can You Win?

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.

The fact of the matter is, these claims are winnable and case after case has proven to be quite lucrative for the Plaintiff when they are successful.  Even if the case is not taken to trial, the bargaining power alone can be a “win” for the injured spouse.

Criticism

These laws are on the books for many reasons.  Critics of these types of claims call the claims an outdated way to legislate morality.  These critics point out that the laws do not protect marital relationships and they can be used for blackmail or forcing settlements as well as used to seek revenge against a third party.  On the flipside, those who support continuing to have these claims on the books say that because there is an absence of criminal charges for adultery, there has to be some type of retribution available for the injured spouse.  Western culture has long disapproved of adultery, so while criminal charges are usually not brought, civil cases are a way to punish breaking with laws and customs of society.  Supporters also point to the claims as a way of deterring affairs.

The debate regarding these types of claims will continue, but for now, alienation of affection and criminal conversation are active in North Carolina.