In North Carolina, spouses may take legal action against third parties who interfered with their marriages. These cases, known as alienation of affection and criminal conversation, are types of civil action referred to as torts; a tort is a private civil action in which the actions of one person causes harm or loss to another.
Q. What is the difference between alienation of affection and criminal conversation?
A. In a criminal conversation suit, the plaintiff seeks damages from a third party who engaged in sexual intercourse with his/her spouse while the marriage was still intact. Alienation of affection, in contrast, does not require proof of sexual relations, only that the conduct of a third party was the controlling or effective cause of the alienation and destruction of the love and affection of the spouse, even though other causes may have contributed to the alienation. While most alienation of affection cases are directed toward a spouse’s lover, the same accusations may be leveled at anyone – including counselors, clergy, friends, employers, and even relatives – deemed responsible for alienating one spouse from another.
Q. My husband/wife and I are separated and I have started a relationship with someone else. Can he/she make a claim against my new girlfriend/boyfriend?
A. In North Carolina, alienation of affection and criminal conversation actions have been successfully brought against third parties involved with a separated spouse, whether the relationship started before or after the separation. However, effective October 1, 2009, a change was made to the law that limited these suits to the timeframe before the spouses physically separated with the intent that the separation would remain permanent.
To be successful, an alienation of affection claim must prove that the third party wrongfully and maliciously interfered with a marriage in which there was some level of love and affection, resulting in the alienation of one spouse from the other, and causing damages to the spouse, such as mental or emotional suffering, loss of income, and loss of consortium. A successful criminal conversation claim must prove that the third party engaged in sexual intercourse with his/her partner while that person was legally married to another and, as a result of the criminal conversation, the plaintiff suffered damages such as emotional harm, mental suffering, loss of support and income, and loss of consortium. Each adulterous action can be treated as a separate criminal conversation claim.
For any acts of criminal conversation or alienation of affection occurring after October 1, 2009, the statute of limitations is three years from the last act of the defendant giving rise to the cause of action against the defendant.
Unfortunately, in many cases, these types of claims are used as leverage by the alleged wronged spouse in negotiating a divorce settlement. It is highly recommended that separated spouses and anyone pursuing a relationship with a separated spouse seek legal counsel to understand how these laws can impact them.
Q. I did not know he/she was married when we had a relationship. Can I still be held responsible?
A. Lack of knowledge of the marriage between the plaintiff and his/her spouse is a defense to an alienation of affection claim. In contrast, if you engage in sexual intercourse with someone who is married, whether you were aware of the marital status or not, a claim of criminal conversation may be filed against you.
There are a few additional defenses to claims of alienation of affection and criminal conversation which we would be happy to discuss with you when evaluating your case.
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