Alienation of Affection and Infidelity

An outsider’s interference with marriage can cost them big bucks in North Carolina. When someone engages in a relationship with a married person, a resulting alienation of affection or criminal conversation lawsuit can be costly. Fairly high-dollar awards in such cases have existed in the state for a number of years, a fact not generally known.

Even if you do not actually file a complaint and sue the paramour, often times the threat of such a suit can be used as leverage in your negotiations with your spouse as you separate.

It may be the case that your spouse intends to continue the relationship with the paramour and doesn’t want a lawsuit tarnishing their relationship.

Additionally, court documents are public record, and your spouse may have an interest in not airing this dirty laundry in public.

A cheating spouse may be inclined to offer more in terms of property distribution or budge in a custody dispute if the other party agrees to not pursue a lawsuit against the person they had an affair with.

What is Alienation of Affection?

Proof Required – How to Establish an Alienation of Affection Claim

In North Carolina, you may sue an individual who has caused a married person to suffer the loss of affection of their spouse, so long as the marriage was peaceful and intact at the time of the affair. In layman’s terms, you may sue your spouse’s paramour. To prove this case legally, however, you must satisfy the following:

  1. You and your spouse were happily married and a genuine love and affection existed between you.
  2. The love and affection was alienated and destroyed.
  3. The wrongful and malicious acts of the defendant produced the alienation of affection.
  • That “malicious” part is presumed if there is proof of sexual intercourse.
  • BUT, malice does not always mean sexual intercourse.

As this cause of action has been around for nearly a century, there are numerous judicial opinions that have established more detailed rules within North Carolina and how to prove the elements above.

For instance, it is not necessary for you to prove that the mistress actually set out to destroy your marriage, simply showing that she engaged in acts that would have a foreseeable impact on your marriage is enough.

Additionally, for this claim to survive, you do not have to prove your marriage was perfect, completely blissful, and problem free.  Showing that there was some love and affection between you and your spouse is sufficient.

This claim will also survive even if you cannot prove that the mistress was the one in fact doing the “luring,” and it was your spouse who initiated contact and pursued her.  You have a claim if you can prove that the person you are suing was an active participant, initiated, or encouraged the affair.

What makes this tort different from criminal conversation, which we discuss below, is that an alienation of affection claim can survive even if there is no evidence of sexual intercourse.  Some law professor-types call this the “mother-in-lawsuit” exception.  Very witty.

That’s right, if your mother-in-law played an active role in your loss of affection from your spouse, and you can prove she did so maliciously, you could probably sue her for alienation of affection. Liability hinges on whether the family member’s conduct arose from malice or other improper motive.

Although this tort has been widely abolished and is only recognized in a handful of states today, it is alive and well in North Carolina; roughly 200 such suits are filed each year here.

Defenses to Alienation of Affection

There are several defenses that a defendant may plead if sued under this tort. They may defend the suit by claiming that there in fact was no love and affection in existence between the husband and wife, they may claim that they were unaware that the person was married, or they may claim a defense related to the statute of limitations, which we will discuss in depth later in this article.

Additionally, there exists a defense if you have consented to the seduction. That may sound odd, why would you consent to your spouse’s affair?

Well, maybe a spouse wishes to use evidence of an affair to their advantage in subsequent divorce proceedings, so they encourage and consent to their spouse’s affair. Perhaps you are having a secret affair yourself, so you encourage your spouse to cheat. In these situations the defendant can use your consent as a defense.

Another defense that a potential defendant may have is that you were already separated prior to the alienation. In 2009 the legislature passed a law expressing that:

“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 the plaintiff’s spouse that the physical separation remain permanent.”

This means that if you have executed a separation agreement, or the defendant can otherwise prove that you were separated, with the intent to remain separated, any sexual conduct, for example, that occurred after the separation, doesn’t count.

Lastly, there is a defense called “connivance.” This means that if your spouse tricks you into having an affair, the person they subsequently had the affair with can raise this as a defense if you end up suing them.

What is Criminal Conversation?

Proof Required – How to Establish Your Claim

This lawsuit differs from alienation of affection because it requires proof of sexual intercourse outside the marriage. You must prove:

  1. Actual marriage between you and your spouse.
  2. Sexual intercourse between your spouse and a third party during the marriage.

To prove this, you do not have to have direct proof, you can use what we call “circumstantial” evidence.

Defenses to Criminal Conversation

Similar to the alienation of affection defenses, a defendant may plead connivance, or that you were already separated when the sexual intercourse occurred. Additionally, a defendant may raise a statute of limitations defense.

Notice, however that some of the defenses available in an alienation of affection cause of action are absent here. For instance, ignorance of the marriage, that the marriage was an unhappy marriage, and consent are not applicable defenses to this tort.  This is a powerful point, because it makes the paramour much more vulnerable if a criminal conversation suit is filed.

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 in any way to these types of actions. Conduct that occurs after the date of separation may also be considered by a judge in two ways.

First, if that conduct corroborates the conduct that occurred before the date of separation it will be considered in either claim.

Second, if the conduct occurred after the date of separation, but the couple is attempting to reconcile or do not intend for the separation to be permanent, the post-separation conduct in itself could be the basis for an alienation of affection or criminal conversation claim. It is important to note that if a couple is separated, and they intend for that separation to be permanent, then the post-separation conduct cannot be the sole basis for either claim.

Statute of Limitations

We mentioned briefly that a defense to both the alienation of affection and criminal conversation causes of action lies within the statute of limitations.

You may be wondering what that even means.

A statute of limitations basically puts a time limit on when you can file a lawsuit.

It prevents lawsuits from popping up long after an event occurred, which makes sense from a practical standpoint. If you sue someone twenty years later, imagine how clear a witness’s memory would be about what happened so many years prior, and how hard it would be to locate evidence after so much time had passed.

With regard to both lawsuits discussed in this article, the statute of limitations is three years. If you fail to initiate your cause of action within three years of its accrual (when the injury took place) you are barred from bringing it.

In an alienation of affection cause of action, the “injury” occurs when the wrong is complete. Thus, the time doesn’t start ticking on your three years until destruction, or a significant reduction of the love and affection of your spouse. Although an affair may carry on for years, your three-year window to sue does not start until the actual act is complete.

You may be wondering, how do you determine when it is complete? There is no concrete answer to that question. At trial, a judge or a jury acts as fact finder and it is generally the fact finder’s job to determine when the alienation of affection was complete. The fact finder will have to weigh the testimony and evidence and determine when they believe the alienation was complete if the defendant raises a statute of limitations defense.

In 2009 North Carolina passed legislation speaking directly to statute of limitations issues with these causes of action. The law says:

(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.

Essentially, this law was designed to clear up any confusion related to the application of the statute of limitations in these causes of action.  Subsection (a) dictates that the acts must occur prior to separation and subsection (b) clearly establishes the statute of limitations.

The 2009 statute clarifies that any such action must be filed within three years of the last act of the defendant, which cannot occur post-separation.

What is important to remember about the statute of limitations with these claims is that your awareness of the affair is of no importance. If your wife had an extramarital affair six years ago, but you only found out recently, you cannot sue her paramour. The three-year statute of limitations begins ticking at the time of the last act causing injury, not when you become aware of the injury.

Jurisdictional Issues Concerning Alienation of Affection

We mentioned previously that North Carolina is one of only a handful of states that still recognize these causes of action, and that most states have abolished them. So what if you and your spouse live in North Carolina but an affair takes place in another state? Perhaps the mistress lives in Virginia and the only time your spouse saw her was when your spouse was in Virginia?

Or what if you and your spouse are residents of Virginia and are getting divorced in Virginia, but you discover that he engaged in an affair that took place in North Carolina?

Since North Carolina recognize alienation of affection and criminal conversation, but Virginia does not, does that affect whether you can sue the person they had an affair with?

As you can see, jurisdictional issues can get complicated.

The basic rule is that you must show that the acts causing the alienation of affection or criminal conversation occurred in North Carolina. Even if some of the acts occurred in other states, you still have a cause of action if you can prove that alienation took place in North Carolina.

The issue of whether the alienation took place in North Carolina or elsewhere is a matter for the jury to determine.

In a 1988 North Carolina Court of Appeals decision, it was determined that even though a cause of action for alienation of affection could be the result of several acts, occurring in several states, the jury is charged with the task of weighing the evidence to determine which state the injury occurred in.

As for a criminal conversation action, it is easier to determine which state law applies because the injury occurs where the intercourse took place. It can be harder to determine where alienation occurred, as this can happen over time, and the cause of action can be brought even if there is no intercourse.

The bottom line is that if you can prove that the alienation or the criminal conversation took place in North Carolina, you may still have a cause of action even if the affair additionally took place in other states that do not recognize those causes of action.

What if you and your spouse reside in North Carolina, and your spouse cheated in North Carolina, but with someone who was not a resident of this state? And that person has no idea they can be sued for it?

You may still be able to sue them.

North Carolina has a “long-arm statute,” which allows a North Carolina court to claim jurisdiction over someone who is not a resident of this state, if that person has sufficient minimum contacts with this state.

Additionally, the court also must analyze whether forcing this person to appear in a North Carolina court to defend himself or herself violates their constitutional due-process rights. In determining this, the court basically delves deeper into the minimum contacts requirement, and considers the following factors:

  1. Quantity of contacts
  2. Nature and quality of contacts
  3. Source and connection of the cause of action with those contacts
  4. The interest of the forum state
  5. The convenience to the parties.

Without going into an in-depth legal discussion of how to establish minimum contacts, you should be aware that generally mail, email, and telephone contact with someone in North Carolina is enough to prove minimum contacts and exercise jurisdiction.

To illustrate how this works, we’ll consider two examples.

First, your wife had a one-night-stand with someone who resides in Florida and was passing through North Carolina. Somehow you were able to find out and know enough about the person to establish where they live, but otherwise there was no contact between your wife and this man. This is probably not enough to satisfy minimum contacts.

Now change the facts.

Say your wife had an ongoing affair with a man who lived in Florida, but frequented North Carolina on business trips. You uncovered email correspondence and phone records that prove that he was contacting her occasionally. In this scenario, you have most likely established that sufficient minimum contacts exist between the man and North Carolina, so that asking him to appear and defend himself in North Carolina would not be infringing on his constitutional due-process rights.

Now, what about the hypothetical posed earlier, where none of the parties reside in North Carolina, but an affair took place here?

In 2003 the Court of Appeals issued an opinion involving these facts exactly. In that case, a husband and wife lived in Tennessee, and maintained a vacation home in North Carolina. The wife had an affair with someone who lived in California, and the husband attempted to sue the man for alienation of affection in North Carolina.

The man testified that the only contact he had with the wife in North Carolina was during one three-day stint when he saw her while she was vacationing in Atlantic Beach. The Court of Appeals determined that these facts, on their face, were not enough to establish minimum contacts with the state of North Carolina, and thus refused to exercise jurisdiction over the man.

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 Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah — which still recognize both alienation of affection and criminal conversation. Forty-three states and the District of Columbia have 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.

Although many think these claims should be outlawed, and that these laws are rather archaic, the reality is this type of lawsuit is alive and well in North Carolina and these matters come into play frequently in family law cases.

Has Anyone Actually Won an Alienation of Affection Lawsuit?

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 a plaintiff’s 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.

In the 1990’s, North Carolina juries were even more generous. 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 1997 alone, a jury handed down $1.2 million against a female paramour in Forsyth County, awarded 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.

Even in the last 15 years, the trend of generosity has continued. In August of 2000, a Burke County judge awarded a devastated wife $86,250 for alienation of affection and $15,000 for criminal conversation, totaling $101,250. In May of 2001, in Richmond County, the jury answered the issues in favor of the scorned husband and awarded him compensatory damages of $50,000 plus punitive damages of $50,000. Another distraught husband, in Mecklenburg County, received an award of $1.4 million in May, 2001 comprised of $910,000 in compensatory damages and $500,000 in punitive damages. The jury found the doctor who had had an affair with this man’s wife liable for both alienation of affection and criminal conversation. After an appeal the original award of compensatory damages was reversed, the punitive damages award, however, was upheld. In 2007, a Cook County judge ordered a man to pay $4802 to a husband who was grieving the loss of his wife after an affair.

In 2009 a woman was awarded a nine million dollar verdict after she won a suit against her husband’s mistress, and in 2011 another plaintiff was awarded a thirty million dollar verdict in an NC alienation of affection suit.

Criticisms 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 affection 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.

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