Alienation of Affection in North Carolina
(PLEASE NOTE: The following information is based on NORTH CAROLINA law. If you do not live in North Carolina, please contact an attorney in your home state regarding whether or not your state has similar laws. There are a few situations in which an act occurring in North Carolina would permit an out-of-state spouse to make a claim for alienation of affection in North Carolina and if that is the case, you should contact an attorney in North Carolina and in the State of your residence)
Alienation of Affection is a tort action, similar to a personal injury case, based on the willful and malicious interference with marriage relations by a third party. Alienation of Affection actions are often brought at the same time, or in conjunction with, Criminal Conversation actions as oftentimes the facts of the case include both the elements of alienation of affection and criminal conversation.
The elements of the tort of Alienation of Affection are:
- the parties to the marriage were happily married and genuine love and affection existed between them
- such love and affection was alienated and destroyed
- the wrongful and malicious acts of the person being sued brought about the loss and alienation of such love and affection.
The exclusive right to sexual intercourse with one's spouse is not the right that is protected in this type of case. The actual affection between spouses in a marriage is the right that is protected. Therefore, people who have no romantic or sexual contact with a married person can still be sued for Alienation of Affection. In fact, in-laws, therapists, siblings, clergy and religious organizations have all been sued for Alienation of Affection in North Carolina.
North Carolina juries have handed out large awards in Alienation of Affection cases. In 2001, a Greensboro jury awarded $2,000,000.00. In 1997, another jury awarded $1,200,000.00 in a Forsyth County case. Other awards include $ 1,000,000.00 to an Alamance County woman, $243,000.00 to a Wake County man, and $40,000.00 to a Durham County man whose wife allegedly ran off with another man.
Most States and the District of Columbia have abolished alienation of affection claims either by legislation or by court ruling. The States in which the tort of alienation of affection are still recognized are Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah.
In the past few years, various bills to eliminate the current laws regarding Alienation of Affection have been introduced in the North Carolina legislature and were defeated. Some legislators and lobby groups say these torts are outdated because they are based on ancient property law. Additionally, there are legitimate concerns that these torts are abused in domestic cases to obtain settlements that would not otherwise be possible in the domestic court setting. Other legislators and lobby groups say the statutes help preserve the family and help put a value on a marriage and the damage caused by third party interference.
If your spouse was having an intimate relationship with another person prior to your separation, or if you suspect someone convinced your spouse to unjustly leave your marriage, it is important that you contact an experienced attorney and obtain sound legal advice regarding your rights and your options. In many settlement offers, one spouse will seek to have the other waive his/her rights to sue the third party for alienation of affection. Therefore it is important to understand your rights and options prior to waiving any such claims. If you have evidence indicating these actions occurred, ensure that you put that evidence in a safe place so that these items do not “disappear” before you have a chance to show them to your attorney.
If you are involved with someone whom you know is married, or suspect you are involved with someone who is married, or if you are being sued for alienation of affection, it is important to hire an experienced attorney to give you sound legal advice and represent you. If you are separated or are anticipating a separation from your spouse, it is possible for your attorney to draft documents that will protect you, or any actual or potential romantic interest, from being sued for alienation of affection by your spouse. Such agreements must be agreed to and signed by your spouse, so it is important to find an attorney who can draft and negotiate these agreements for you. This type of agreement is usually contained in a Separation Agreement, but can also be included in other interim agreements if the parties need additional time to resolve other issues related to the marriage.
Criminal Conversation in North Carolina
(PLEASE NOTE: The following information is based on NORTH CAROLINA law. If you do not live in North Carolina, please contact an attorney in your home state regarding whether or not your state has similar laws. There are a few situations in which an act occurring in North Carolina would permit an out-of-state person to make a claim for Criminal Conversation and if that is the case, you should contact an attorney in North Carolina and in the State of your residence.)
A lawsuit for Criminal Conversation is a civil claim for adultery. Unlike Alienation of Affection, this tort action does protect the fundamental right of exclusive sexual intercourse between spouses.
To prevail in a cause of action for Criminal Conversation, the person filing the lawsuit must be, or have been at the time, lawfully married and his or her spouse had sexual intercourse with another person outside the marriage without the consent of his/her spouse. The act must have occurred wile the parties were still married (which includes the period of separation prior to the actual date of divorce). The lawsuit must be brought prior to the end of the statue of limitations.
Generally, in these cases, there does not need to be a picture or video of these acts. Most often the acts are inferred based on other, less graphic, evidence such as text messages, emails, social networking web pages, public displays of affection and the opportunity for sexual activity to occur. A very simplified explanation is that the plaintiff needs to prove “inclination” and “opportunity.” If the defendant and the spouse are seen kissing in public, dating, making frequent or unusually timed phone calls, and/or there is evidence that the defendant and the spouse have spent overnights together in a hotel or other private location, they can likely be found to have had both the inclination for the infidelity and the opportunity to act on it.
NOTE: In criminal conversation cases, it does not matter if the plaintiff's spouse consented to the adultery, pursued the defendant, or if the plaintiff and his or her spouse were separated at the time.
Here is a very basic fictitious fact pattern to illustrate a situation which could result in the filing of an action for criminal conversation (even if your situation is exactly like this, do not interpret this as legal advice - if you are involved in a legal action, talk to an attorney immediately):
Bob and Jean are married and have been for 10 years. Neither is happy in the marriage and together they decided to get divorced. Bob sees an attorney and tells Jean that North Carolina law requires spouses be separated (living separate and apart with the intention to end their marriage) for a year and a day before they can be granted a divorce by the Court. Jean moves out of the house and into an apartment of her own. Two months later, she begins dating and falls in love with her neighbor Jack. Jean and Jack move in together and begin a sexual relationship.
Based upon the very limited legal elements of the tort of Criminal Conversation, Bob can sue Jack in civil court for Criminal Conversation. It does not matter if Bob asked Jean to leave; it does not matter that Jean moved out prior to the start of her relationship with Jack; and it does not matter that both Jean and Bob agreed to end their marriage. It would not even matter if Bob had thrown Jean out of the house. Fianlly, Jack would also not be entitled to relief even if he didn't know that Jean was still married.
If, prior to Bob and Jean’s separation, Jack knew Jean was married, pursued her, convinced her to leave Bob, and then began a sexual relationship with her, he could be liable for both Criminal Conversation and Alienation of Affection.
In either scenario, Bob’s damages could be both compensatory (actual damages) and punitive (as punishment). While punitive damages are capped in North Carolina, the Court or a jury has discretion to determine what compensatory damages Bob has suffered from the sexual relationship between Jack and Jean.
In the past few years various bills to eliminate the current laws regarding Criminal Conversation have been introduced in the North Carolina legislature and defeated. Some legislators and lobby groups say these torts are outdated because they are based on ancient property law. Other legislators and lobby groups say the statutes help preserve the family and help put a value on a marriage and the damage caused by third party interference. As such, the tort of criminal conversation is still active in North Carolina and anyone involved in these actions should seek sound legal advice regarding their options.
If you have been unfaithful or you suspect your spouse of infidelity, it is important to act quickly to protect your interests. If you have been involved with a person who is married or whom you suspect is married, or you have been sued for Alienation of Affection or Criminal Conversation, it is important that you seek legal advice immediately. The experienced family law attorneys of Haas & Associates, P.A. will guide you through the legal process. Commitment and responsiveness to our clients' needs are our top priorities. Please contact us at 1-866-783-9669, or via our online contact form, to get more information and schedule a consultation with one of our attorneys.