North Carolina laws protect “sanctity of marriage”
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, because the same set of facts are often used for both actions. Most states do NOT recognize alienation of affection or criminal conversation actions. These laws vary greatly based on the state where you reside. The following describes the laws that apply in North Carolina only.
What constitutes alienation of affection
The elements of the tort of alienation of affection in North Carolina 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 actual affection between spouses in a marriage—and not their exclusive right to sexual intercourse with their spouse—is the right that is protected in this type of case.
North Carolina juries have handed out large awards in alienation of affection cases, including—
- $2 million, Guildford County, 2001
- $1.2 million, Forsyth County, 1997
- $1 million, Alamance County
- $243,000, Wake County
- $40,000, Durham County
Criminal Conversation Law in North Carolina
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 have been lawfully married at the time his or her spouse had sexual intercourse outside the marriage and without the filer’s consent. The act must have occurred while the parties were still married.
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 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.
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Alienation of affection cases
If someone is having an intimate relationship with your spouse, from whom you are not separated, or 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 for sound legal advice regarding your rights and your options. In many settlement offers surrounding separation agreements or divorce, one spouse seeks to have the other waive his or her rights to sue the third party for alienation of affection. It is important to understand your rights, what criminal conversation is and what constitutes alienation of affection, as well as your 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.
In North Carolina, if you know or suspect that a person with whom you are involved is married, or if you are being sued for alienation of affection, it is important that you obtain the sound legal advice and representation of an experienced attorney. 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 experienced attorney to 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 Cases
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 family law attorneys of Haas Tharrington, P.A. have the experience to guide you through the legal process.
PLEASE NOTE: The information provided here is based specifically 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 a North Carolina resident to make a claim for alienation of affection or criminal conversation against a resident of another state.