Alienation of Affection and Criminal Conversation: Beware of Affairs

If you are involved in an affair with a married person, you are at risk of being sued for two North Carolina claims that can result in significant monetary damages.  Alienation of affection and criminal conversation are controversial claims that have recently been upheld by North Carolina courts that give married persons the ability to sue persons who engage in adulterous relationships with their spouse.

What is Alienation of Affection

While the majority of states no longer allow suits for alienation of affection, North Carolina is not one of them.  A spouse’s right to sue the paramour of the other spouse or any third-party who alienates the affections of the other spouse is still alive and well in North Carolina.  For example, in 2011, an award of $30 million dollars was issued in an alienation of affection lawsuit in Wake County.

To prove a case for alienation of affection, a plaintiff must show

• The couple was happily married and a genuine love and affection existed between them; and
• The love and affection was alienated and destroyed; and
• The wrongful and malicious acts of the defendant produced the alienation of affection.

What a plaintiff does not need to show is that the marriage was perfect before the alienation of affection occurred.  All that is required is that some love and affection existed in the marriage.  Additionally, it isn’t required that the paramour pursued the relationship.  Lastly, most people are surprised to find out that sexual intercourse is not a requirement.  In fact, any third-party can be successfully sued as long as the requirements are met.  That is why this lawsuit is nicknamed the “mother-in-law” suit.  Even someone’s mother-in-law may be sued if she alienated the affections of the spouse.

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In practice, alienation of affection lawsuits are mostly threatened to gain leverage in separation and divorce negotiations.  In the majority of cases in which the facts would support an alienation of affection claim, the potential defendant is judgment proof.  However, litigation or an alienation of affection claim and all that comes along with it can subject a person to financial ruin, embarrassment, and shame.  Figuring out a way to resolve the claim without litigation is preferred in almost all cases.

Alienation of affection is a complex claim and, as noted above, can result in excessively large awards for damages.  That is why it is imperative you have an experienced attorney handling your claim.  As your attorney we can negotiate with the parties to prevent litigation.  We can communicate with the offending spouse to try and pursue a third party wavier that absolves our clients of liability for alienation of affection claims.  We can also negotiate with plaintiffs to prevent the filing of suit.  If litigation is unavoidable, we have jury trial experience in prosecuting and defending alienation of affection claims.  Regardless of your situation or the stage of your case, we are equipped to see it through.

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Criminal Conversation

Criminal conversation is often filed alongside alienation of affection as it’s easier to prove.  To prove criminal conversation a spouse must establish:

• The existence of a lawful marriage
• Sexual intercourse between the defendant and the plaintiff’s spouse without the plaintiff’s consent

Criminal conversation cannot be maintained if the act of sexual intercourse occurred after the physical separation of the parties.  It is a strict liability offense, which means, knowledge of whether the plaintiff’s spouse was married is irrelevant to the claim.  Proving sexual intercourse does not require direct proof.  A plaintiff must establish adultery, which requires proving inclination and opportunity.  Inclination requires proof that the offending spouse is motivated or inclined to commit adultery.  Opportunity can be proved by producing evidence that the offending spouse and the defendant were alone for a sufficient amount of time to complete the act of sexual intercourse.

If you’ve been threaten with a suit for alienation of affection or criminal conversation, you should act quickly to mitigate the potential damage.  If you’re pursuing a claim, it is important to evaluate the potential defendant to determine if going forward is worth it.  Regardless of your situation, we can help protect or enforce your rights.  Contact us today.

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