Alienation of Affection in NC Divorce and Family Law
- Alienation of Affection and Criminal Conversation
- Record High Verdicts in North Carolina
- What is Alienation of Affection?
- Proving Alienation of Affection Claims
- Alienation of Affection Defenses
- What is Criminal Conversation?
- Criminal Conversation Defenses
Alienation of Affection and Criminal Conversation in NC
North Carolina laws allow a spouse to sue a third party who interferes with the sanctity of his or her marriage. These are civil actions called Alienation of Affection and Criminal Conversation lawsuits. They are tried in Superior Court instead of in Family Court because they are civil “torts.” A tort is defined as a civil wrong for which the injured party is entitled to compensation. Alienation of Affection torts are commonly referred to by family lawyers as “heart balm torts.”
Alienation of Affection and Criminal Conversation legal actions are frequently filed simultaneously since they both contain many of the same facts. Either party has the right to a jury trial in these cases although some parties choose to waive that right and have the issues heard by a judge.
Record High Verdicts in North Carolina
Large damage verdicts have been awarded in North Carolina in these cases. The verdict amounts are largely dependent on the facts and evidence in the particular case.
Greenville family law attorney Cynthia Mills won a $5.9 million verdict for her client in a Pitt County, North Carolina 2010 Alienation of Affection lawsuit, Acara v. Pecoraro. It was the second highest amount ever awarded in North Carolina at that time. The verdict made international headlines.
What is Alienation of Affection?
Alienation of affection is when a third party interferes in the marriage of two spouses and causes the innocent spouse to suffer loss of affection from the other spouse.
Alienation of Affection lawsuits are civil legal actions seeking monetary damages from the other spouse’s boyfriend or girlfriend that alleges his or her responsibility for harm to the marital relationship. To make the claim, it must be established that the marriage was intact at the time the alienation occurred. While most of these actions are brought against a paramour, they can also be brought against other third parties such as a relative, an in-law or a same-sex lover if their conduct maliciously interfered with the marriage.
To prove alienation of affection in court, the innocent spouse must establish there was genuine love and affection between the two spouses in their marriage, that the love and affection was alienated by the wrongful conduct of the defendant, and that the innocent spouse was damaged by the defendant’s willful interference in the marriage of the innocent spouse and the other spouse.
It is not necessary to prove that the paramour or other interfering third party consciously intended to harm the marriage – only that he or she should have foreseen the harm their wrongful conduct would cause to the marital relationship. It is not necessary to prove that the marriage was free of problems, or that the other spouse was lured or manipulated into a relationship with the defendant – only that he or she participated.
Proving alienation of affection does not require proof of a sexual relationship between the plaintiff spouse and the defendant. The purpose of alienation of affection law is to protect love and affection in the marriage, not to protect the right to sexual exclusivity.
Proving Alienation of Affection Claims
The plaintiff in an Alienation of Affection case should establish ample evidence that the marriage was good before the defendant came into the picture and alienated the affections of the other spouse. This can include cards and gifts given to the plaintiff by their spouse during the marriage, romantic trips and vacations the spouses took together, wedding photographs depicting a happy family and other photographs of holidays and special events, etc.
The plaintiff will also need a clear timeline of when his or her spouse began to “lose interest” in the marriage as well as evidence to prove the relationship that existed with the defendant. Both can be shown through telephone records and credit card receipts among other things, as well as cards and gifts given by the defendant to the other spouse. The best evidence, however, is usually obtained through services of a private investigator.
Alienation of Affection Defenses
There are several possible defenses for a defendant who has been sued for alienation of affection. The claim may be dismissed if the lawsuit falls outside the three-year statute of limitations for filing, or the defendant’s conduct occurred after the couple were separated. There are also affirmative defenses which may be pled by the defendant including the claim he or she did not know the spouse was married or the love and affection between the spouses was already gone.
What is Criminal Conversation?
Criminal Conversation is simply another word for adultery or extramarital sex. Whereas alienation of affection law protects the right to love and affection in a marriage, criminal conversation law protects the right to sexual exclusivity in a marriage.
To prove a criminal conversation claim, it must be established that the innocent spouse and the adulterous spouse were in a lawful marriage and that during their marriage, extra marital sex occurred between the adulterous spouse and the defendant. The evidence must prove the adultery occurred before the spouses separated.
Videos and photographs are not required as proof although they certainly make the case more compelling. Juries love pictures and videos. However, circumstantial evidence can be used to establish the sex act occurred. That evidence can be text messages or emails, social media posts, witnesses to public kissing or other intimate displays of affection, or evidence that the adulterous spouse and defendant spent time together in a hotel or other place that presented an opportunity for sexual intercourse to happen. Here again, evidence from private investigators is generally the best way to prove the tort occurred.
Criminal Conversation Defenses
As in defenses against allegations of alienation of affection, a defendant may give evidence that the statute of limitations has passed or that the married spouses were already separated when the extra-marital sex occurred. The defendant may also claim “contrivance.” Contrivance is when the plaintiff gives consent to the sexual conduct.
Some of the defenses against alienation of affection are not available to the defendant for criminal conversation. The defendant cannot claim he or she did not know about the marriage or that the marriage was already in trouble.
Greenville NC Alienation of Affection and
Family Law Attorney Cynthia Mills
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