Criminal Conversation

Know Your Rights

In North Carolina, a married person can sue a third party who has interfered with their marital relationship.

In the State of North Carolina, a married person may be able to file suit against a third party who has interfered with their marital relationship. North Carolina is in the minority of states allowing these types of claims. These claims are “alienation of affection” and/or “criminal conversation” and are sometimes referred to as heartbalm actions. The “innocent” spouse typically brings these types of lawsuits against the “guilty” spouse’s paramour/lover. A claim for alienation of affection, however, can also be brought against a third party such as an in-law or other near relative who has advised a defecting spouse to leave the marital relationship. The statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S. Section 1-52(5), is three (3) years.

When considering an alienation of affection or criminal conversation claim, the date of separation becomes and important date. This date is important because the courts of our State have stated that conduct prior to the date of separation is relevant whereas conduct after the date of separation may not be relevant. It is very important to note, however, that a judge may also consider conduct, which occurs after the date of separation, if that conduct corroborates the conduct that occurred before the date of separation.

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In a criminal conversation claim, post-separation conduct becomes more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation but is enough on its own to maintain an action for criminal conversation. Criminal conversation is often referred to as a “strict liability tort” because a plaintiff only has to demonstrate that: (1) there existed a valid marriage between the spouses; and (2) evidence of voluntary sexual relations between the defendant and the plaintiff’s spouse during the course of the marriage, i.e. adultery. The only real defense to criminal conversation is that the plaintiff’s spouse consented to the adultery between the defendant and his/her spouse. In criminal conversation, it is not a defense that: the defendant did not know the other person was married; that the person consented to the sex; that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage; or that the plaintiff had also been unfaithful.

ALIENATION OF AFFECTION

In an alienation of affection claim, a plaintiff spouse must show:

You and your spouse were in a valid marriage with genuine love and affection;
The love and affection between you and your spouse was destroyed and alienated;
The wrongful and malicious behavior of the third party was the cause of the destruction and alienation of your spouse’s love and affection;
The wrongful and malicious behavior occurred prior to the separation of you and your spouse; and
The alienation damaged you (i.e., led to the dissolution of your marriage, separation, depression, economic loss, etc).

Punitive damages will be allowed under certain circumstances and a defense against an alienation claim may exist if a defendant can show the defendant did not know that the object of his or her affections was in fact married. This, however, is not a defense to criminal conversation.

How do I show my spouse and I shared love and affection before the affair?

Evidence to support that you and your spouse were in a loving marriage, may include things such as cards, letters, notes, photos, home videos, social media posts, and other documents that will help to show that genuine love and affection was present during the marriage. It may help to make a list of the kinds of behaviors your spouse engaged in before the interference of the third party, i.e. bringing you flowers, making you a special meal, surprising you with your favorite treat, rubbing your sore muscles, etc. Third parties such as family and friends who knew you and your spouse during your marriage may also help to establish the loving and affectionate behaviors they witnessed between you and your spouse before the interference of the third party.

How can I prove that the third party caused the destruction of my marriage?

There are many reasons why a marriage might fail. Alienation of Affection is reserved for those marriages where the parties would still be together and in love if not for the interference and wrongful behavior of someone else. It is not necessary that you prove your spouse and the third party engaged in a sexual relationship during the marriage, but rather that the actions of the third party alienated your spouse’s love and affection. Behavior such as making excessive telephone calls, sending sexy texts or emails, arranging secret rendezvous or private meetings, could be sufficient for a jury to find that the person knew or should have known his or her actions might cause harm to your marital relationship. If you do have proof of a sexual relationship between your spouse and a paramour during the marriage – and prior to any period of separation – it is presumed that the paramour’s behavior of having a physical relationship with your spouse was malicious and done with the knowledge it might cause harm to your relationship.

What if my spouse moved in with this other person right after we separated?

While the third party’s wrongful behavior needs to have destroyed the relationship prior to your separation in order to claim alienation of affection in North Carolina, post-separation actions which are suspicious may provide evidence that a relationship was occurring during your marriage and before the separation. A sudden, intimate relationship with a friend or co-worker which occurs immediately following separation and moves undeniably fast can be used as evidence that those texts, lunches, weekend retreats, or nights working late with that third person were actually wrongful and malicious actions which seduced your spouse’s affections away from you.

What arguments might be brought against me if I sue for alienation of affections?

Some possible arguments the defendant might bring against you could be that you have invaded his or her privacy, for example, if you hired a private investigator to report the third party’s behavior, or that you are engaging in malicious prosecution (e.g., if the third party claims you are using the lawsuit for an improper purpose – such as jealousy, revenge, etc. – and without sufficient proof of a real legal claim for alienation of affection).

It is also important to consider what possible defenses that a third party may bring up in an alienation of affection case. Some possible defenses are consent, separation, or the statute of limitations. These defenses, if proven, may give the third party the upper hand. If you consented to permit your spouse to have an affair with a third party or if you encouraged their relationship, you will likely be unsuccessful in a claim for alienation of affection in North Carolina. You will also likely be unsuccessful if the relationship between your spouse and a third party occurred entirely after you and your spouse have already separated (i.e., began living separate and apart with the intention to remain separate). Finally, a valid claim for alienation of affection must be filed within three (3) years from the time the last wrongful act occurred, or the claim will be barred by the statute of limitations, so if you believe you have a possible claim, you should not wait before talking to a certified family law specialist.

What damages would I be entitled to if I’m successful?

Compensatory damages compensate or reimburse you for your actual losses. Additionally, if the actions of the paramour were especially shocking or heinous, you might be awarded punitive damages which are meant to punish. These damages – both compensatory damages and punitive damages –are both monetary damages (requiring the defendant to pay you compensation).

One of our skilled attorneys can help you consider whether the third party has assets, income, property, or an ability to pay you monetary damages before you undertake the expense of a lawsuit against that person.

How Successful Are Alienation of Affection Cases?

Pursuing a claim for alienation of affection can be stressful, costly, time-consuming, and emotional. There are many factors that should be weighed. To aid in your decision about whether to file a claim for alienation of affection against a third party, contact one of our experienced family law attorneys at Plumides, Romano & Johnson, PC at 704-333-9900 to arrange for an initial consultation.

North Carolina Laws

Alienation Of Affection & Criminal Conversation

Alienation of Affection & Criminal Conversation

N.C.G.S.§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.
(a) No act of the defendant shall give rise to a cause 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 plaintiff’s spouse that the physical separation remain permanent.
(b) 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.

Statute of Limitations

N.C.P.I.—Civil 800.23 General Civil Volume Page 1 of 3. NOTE WELL: Actions arising from acts occurring prior to October 1, 2009, are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006), upon which this instruction is based. For actions arising from acts occurring on or after October 1, 2009, use N.C.P.I.—Civil 800.23A (“Alienation of Affection—Statute of Limitations”). The (state number) issue reads: “Did the plaintiff file this action within three years of the date the alienation between the plaintiff and his spouse became complete?”

Criminal Conversation

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Know Your Rights

In North Carolina, a married person can sue a third party who has interfered with their marital relationship.

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