You may be surprised to find out that, in North Carolina at least, the answer is yes. The paramour of a married person can be sued in North Carolina under the claim of alienation of affection and/or criminal conversation. Alienation of affection is essentially a claim against someone who is believed to have taken the affections of the plaintiff’s spouse away from the plaintiff during the marriage. Criminal conversation is a claim against someone who has had sexual intercourse with the plaintiff’s spouse during the marriage.
If you think the ability to file this kind of lawsuit seems antiquated, you are in good company. Most states do not allow these actions anymore, making North Carolina a distinct minority. These actions have an interesting history in North Carolina. For instance, in 1984, the NC Court of Appeals tried to strike both claims down; however, the Supreme Court later ruled that the Court of Appeals had overstepped its authority, stating that it would be up to our Legislature to overturn these laws. Later, in 2009, the Legislature revised the statute governing alienation of affection and criminal conversation to provide clearer guidance on the time period within which a spouse must file his or her claims against the paramour, but has time and time again confirmed that the public policy of our State supports these causes of action as a way to deter spouses from having affairs, thus protecting the institution of marriage.
Under the 2009 revisions, if a person wants to file a lawsuit for either alienation of affection, criminal conversation, or both (which is usually the case), he or she must do so within three years after the date of “last act of the defendant giving rise to the cause of action” – which means that once the husband and wife separate, no further qualifying acts can occur. In other words, if the claim is not filed within three years after the separation of the husband and wife, it is time-barred. Sometimes the claim is brought prior to the date of the parties’ separation, but not very often. This is because the parties’ separation (i.e., the loss of the marriage) is the “damage” for which most spouses seek compensation from the third party with whom his or her spouse had an affair. With regard to criminal conversation only, acts of sexual intercourse between a spouse and a third party that take place after the date of the separation of husband and wife do not give rise to the claim. This means a person cannot be sued for criminal conversation (sexual intercourse) which takes place after the spouses separate.
Despite the controversy surrounding them, both actions are still very popular in North Carolina – for good reason. A plaintiff spouse can be awarded a great deal of money depending on the circumstances. For instance, in 2011, a Wake County woman was ordered to pay her new husband’s ex-wife $30 million dollars in damages under a claim for alienation of affection.
So what has to be proven in order to win a lawsuit for alienation of affection or criminal conversation?
Alienation of Affection:
To prove a case for alienation of affection, the below elements must be satisfied:
- 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 were the cause of the destroyed affection.
What You May Not Know:
There are a lot of nuances to this claim that make it tricky. Some of them are:
- The law makes it clear that the couples’ marriage did not have to be perfect for the claim to arise. Every marriage is entitled to have its ups and downs, but if “some” love and affection existed at the time the third party came along, the first element will likely be satisfied;
- The paramour does not have to have been the one doing the pursuing; and
- A sexual relationship between the spouse and the third party is not required. This means that a paramour is not the only person who can be sued. If your mother-in-law was the one who did the alienating, she can be sued. That’s right – any natural person can be sued for alienation of affection so long as the facts support it. Note, however, that the “best” claims (i.e., ones in which higher money awards are received) do involve an affair that was sexual and a long marriage.
- Defenses include, among others, ignorance of the marriage, no love or affection in the marriage, and the plaintiff’s consent to the affair.
- Actual marriage existed; and
- Sexual intercourse between a spouse and a third party occurred during the marriage and prior to separation.
What You May Not Know:
- There does not need to be direct proof of sexual intercourse. Circumstantial evidence can be used, and most often is used, to prove it took place.
- Ignorance that a marriage existed is not a defense.
These claims are complex and chances are your situation is too. Whether you are the paramour, the spouse who has been involved in an affair or the spouse who has found out an affair has taken place, contact one of our experienced family law attorneys today to find out your specific rights. We passionately represent our clients, no matter their circumstances.