Alienation of Affection - Interference with marriage can cost big bucks in North Carolina

Non-lawyers are often surprised to learn that a spouse can sue for money damages in North Carolina based on allegations of emotional harm caused by a third party to the marital relationship. These lawsuits for "alienation of affection" and/or "criminal conversation" are usually brought by the innocent spouse against the guilty spouse's lover; but an alienation action may also be brought against someone like an in-law or other near relative who has advised a defecting spouse to leave the marital relationship. There is a three year statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S. Section 1-52(5). This statute starts on the date that alienation occurred, which is determined by a court on a case-by-case basis.

Fairly high-dollar awards in such cases have existed here for a number of years, a fact not generally known. As long ago as 1926, for instance, a jury in Macon County rendered a verdict in the amount of $12,000 against the lover of plaintiff's wife. A 1931 jury in Forsyth County held against plaintiff wife's father-in-law for $38,000. A Rowan County jury awarded $30,000 against a husband's girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000.

In the past several years, however, North Carolina juries have become even more generous, in 1997 alone handing down $1.2 million against a female paramour in Forsyth County and awarding another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife's lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim. Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has also shown no strong interest in doing so since that time, sizeable damage awards remain a real possibility in North Carolina. At the present time, more than 200 alienation actions are filed in an average year.

Conduct after date of separation

The date of separation is an important date in alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant's malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim. It is important to note, however, that conduct which occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even 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.

North Carolina is in the minority

The existence of continuing cases of this sort in North Carolina appears to surprise lawyers and residents in many other states because we are now in a very small minority of jurisdictions -- including Hawaii, Illinois, Mississippi, New Mexico, South Dakota and Utah -- which still recognize both alienation of affection and criminal conversation. As of July 2003, 43 states and the District of Columbia had abolished the cause of action for alienation of affection. The states vary widely in the way they deal with this issue: in some states, only one of the two causes of action continues to exist, and thus proof of the claim and/or damages have been significantly curtailed in recent years. None of these reforms has altered the stance favoring such claims in this State.

Criminal Conversation

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff's spouse. Criminal conversation is something like a "strict liability tort" because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff's spouse. 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 plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant's sex with the spouse did not otherwise impact on the plaintiff's marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff "consented" to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.

Alienation of Affection

An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant's malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim -- but not to a claim for criminal conversation -- where it can be shown that defendant did not know that the object of his or her affections was in fact married. As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant's conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

Criticism of these laws

Critics of such laws call them obsolete methods for legislating morality (despite the fact that most criminal laws could be said to legislate morality). Critics also say the laws do not fulfill their purpose of protecting marital relationships, inequitably punish only one of two guilty parties, and serve as an excuse for blackmail or forced settlements. The critics add that such suits can also be misused by embittered spouses seeking vengeance against a third party interferer and that injured spouses cannot possibly be compensated for a lost marriage. On the other hand, defenders point to the virtual non-existence of criminal prosecutions for adultery in current American culture, a need to uphold the sanctity of the marriage vows through some kind of formal legal sanction for violation of marital promises, and the potential deterrence of rampant extramarital affairs by means of the threat of monetary damage suits. Defenders also point out that adultery has a very long history of illegality; and that it is therefore appropriate for the civil laws of criminal conversation and alienation of affections to perpetuate Western culture's longstanding disapproval, by law and by custom, of extramarital affairs.

Whether one thinks it is a good or a bad situation for North Carolina to continue to recognize such claims by spouses claiming injury to their marriages may largely depend, then, on one's views of the need in the 1990s for protection of the marital relationship through civil litigation against the non-spouse wrongdoer and for monetary remedies for the alleged harms caused to that relationship. Indeed, some commentators have mentioned that high jury verdicts and the renewed popular interest in lawsuits for alienation of affections and criminal conversation may signal a growing societal disaffection with overly permissive sexual standards and a desire for stricter enforcement of family values. Pro-family writers believe it important that deceived spouses have litigation-oriented opportunities for vindication and that society retain this acknowledgment, however marginalized at present, of the supremacy of the institution of marriage against unwarranted intrusion. Ultimately, of course, these are all subjective and philosophical viewpoints likely to vary considerably from person to person. Visit http://www.rosen.com for more information.

Lee S. Rosen is a Board Certified Family Specialist and founder of Rosen Divorce in North Carolina. With offices in Raleigh and Charlotte, Rosen Divorce is the largest divorce firm in the Southeastern United States. Visit http://www.rosen.com for more information.

---

The Job of a Divorce Attorney

Marriage is a very solemn and serious chapter on any person's life. However, due to personal reasons, a couple may decide to call everything off and file a divorce. Divorce, or dissolution, as... Read More

Commitment

Being marriage means being fully committed to your husband as to the Lord. Look at Ephesians 5:22 it says Wives, submit to your husbands as to the Lord. For the husband is the... Read More

Divorce and Uncle Sam: Top 10 Things You Should Know When Filing Your Taxes

1. What is my filing status? (Married, Single, Head of Household) Marital standing at year end determines your filing status for the entire year. If you have a decree of divorce or separate... Read More

An In-Depth Look at Army Divorce Rates

Raleigh, NC-The largest divorce firm in the state, Rosen Law Firm, says they're not surprised by the sharp increase among Army divorce rates and that more needs to be done to counsel the... Read More

Divorce Roadmap: The Route Around the Legal System

Let's look at how a divorce case works so you can see what you face and how you can beat the legal system. The legal divorce process is similar in all states, but... Read More

Divorce Makes Us Stronger

My friends call me the "Divorce Poster Child".At the age of 20 I was married, and by 22 I had our first child. My husband was away at work every weekday, so it... Read More

Divorce--Negotiating Agreement: Ten Steps

The best predictor of a good divorce outcome is the degree of client control over the negotiation--everything works much better if you have it. This doesn't mean you should not get help and... Read More

Does Living In A Loveless Marriage Necessarily Mean That You Should Get A Divorce?

Being in a loveless marriage is a frustrating predicament, but it may not necessarily mean that a divorce is eminent. Solving the quandary of a loveless marriage requires self-reflection to assess the situation,... Read More

Divorce Advice: Getting Divorce Advice From the Right Source

Getting the right type of divorce advice depends on what type of divorce advice you want and what you want to use it for. When looking for divorce advice, it is smart to... Read More

How Thinking About An Uncontested Divorce Figures Into Your Decision About Divorce

An uncontested divorce is the most common type of divorce. An uncontested divorce is a divorce that occurs when there are no disagreements between spouses over divorce related issues like custody, finances, living... Read More

Post-Divorce Alimony in Texas

This article provides a brief overview on Texas law concerning post-divorce alimony in Texas. Laws differ from state to state and individual circumstances vary, so you should consult with a qualified family law... Read More

Grieving the End of Your Marriage, as You Know it

The pain of finding out that your partner is cheating on you can be the worst pain you'll feel in your entire life. What is happening to you, you may wonder. You are... Read More

Hire Divorce Lawyer or Use Online Divorce Forms

When do you need to hire a family law attorney and when is it okay to just use an online divorce form website to save a little money? This article will provide a... Read More

Divorce--Getting Legal Help Without Paying Exorbitant Attorneys Fees

Ignorance is the most common trap in the business of divorce, so becoming informed is crucial. However, friends, relatives and "common knowledge" are the worst and most expensive sources of advice. Use these... Read More

Love and Marriage Fairy Tale

When we were children we believed in fairy tales and happy ever after endings just like Cinderella, Snow White, Sleeping Beauty and many other fairy tales. However, as we grow older, we soon... Read More

How Can Collaborative Law Be Beneficial In Your Texas Divorce?

Collaborative law is based on the realization that the commitment by the parties in a family is that it is in their best interest to avoid going to trial.This process relies on open... Read More

Deciding On Spousal Support

No matter which side you are on, spousal support is something that will need to be taken care of during a divorce. Something must be decided about spousal support, yet, where are you... Read More

Reasons For Divorce; What Constitutes Viable Reasons For Thinking About Or Wanting A Divorce?

According to the Center for Disease Control's National Vital Statistics Report of 2002, 50% of first marriages ended in divorce and 60% of remarriages end in divorce. But, the Center for Disease Control... Read More

Deciding on Divorce: How to Know You are Making the Right Choice

It's a well known fact that in this day and age most marriages end up in divorce. When confronted with the possibility of "throwing a relationship away", you'll probably experience a lot of... Read More

Two Hearts Are Now One

It is fitting that I should write this story on Valentines Day, for this is a story of two broken hearts; healed and mended, then melted together as one--in an instant. This is... Read More

Divorce--How to Beat the System

Of course you want to get your Judgment--that's the goal of your legal divorce--but you don't want to go through the adversarial legal system to get it. You don't want to get all... Read More

Should I Get Divorced? Or Not?

No one besides you can determine whether or not a divorce is right for you! But, there are some general questions which pretty much apply to everybody. Thinking about the following issues may... Read More

Choosing Your Divorce Method

The biggest mistake that people make when getting divorced is that they fail to plan. They simply decide to leave the relationship and then enter and ugly and expensive battle that ends up... Read More

Coping With Divorce Anger

Successfully releasing your anger will help you begin healing after your divorce. Right now you may feel a great deal of rage at your ex-husband. You might be thinking that if it weren't... Read More

Divorce and Separation - A Child?s Perspective

It is always the children that suffer the most when a marriage breaks down and separation or divorce is imminent. Children of divorcing parents often witness arguments even rows and this has a... Read More

7 Ways to Rediscover Your True Passion after Divorce

Going through a divorce is a very challenging time in a person's life. It is hard to adjust to being single again, as well as living "out of the habit" of being married,... Read More

How to Recover From Divorce

As a licensed mental health professional, I work with many individuals, couples, and families who are affected by divorce. I have developed this list of survival strategies for people who are experiencing divorce.... Read More

Five Christmas Survival Tips For The Divorced & Single Parent

For the over 50% of marriages that end in divorce, Christmas can be a hugely trying time.Since the season is one of the most stressful times of the year anyway, this onslaught of... Read More

Seven Sets of Documents You Need For Your Divorce

Even if you believe your case will ultimately be agreed to and settled without a trial, you will be in a much better position if you already have the relevant documents in your... Read More