Marital Fault in North Carolina

In Separation & Divorce by Elizabeth Stephenson

Your spouse has cheated on you. Your trust has been shattered and your marriage is over. In essence, the actions taken by your spouse and a third party have destabilized your life and have thrown your children’s lives into chaos. Beyond divorcing your spouse, do you have any recourse? Yes, you do. North Carolina is one of a few states to recognize “tort” claims regarding “marital fault.” What is a tort? It is a civil cause of action in which a person can be held liable if they commit a wrongful act that harms another person.

Who Can Be Sued?

Surprisingly, it isn’t your spouse who can be held liable under a tort claim. Your grievance with your spouse will play out in your divorce proceedings. Instead, you may file civil lawsuits against the third party whom your spouse cheated with. In fact, there have been numerous cases in which third parties were ordered to pay millions of dollars in damages to wronged spouses.

There are two tort claims: “Alienation of Affection” and “Criminal Conversation”.

Alienation of Affection

To prove this claim, you must prove that:

  1. You and your spouse were married, and that there was love and affection between you;
  2. That affection was “alienated”; and
  3. That this alienation was the result of a third party’s wrongful and malicious acts.

This malice can be proven by showing that there was sexual intercourse, although other evidence may also support a finding of malice. In addition, it is noteworthy, that an alienation of affection claim is not exclusive to a third party that your spouse cheated with. This claim does not require sexual intercourse as a requisite element. Other people, like friends or family members who maliciously acted to destroy your marriage can also be sued.

Criminal Conversation

To prove criminal conversation against a third party, you must prove that:

  1. You and your spouse were married;
  2. You and your spouse were not separated;
  3. While you were married, your spouse had sexual intercourse with a third party; and
  4. That the intercourse occurred within the last three years.

Significantly, each act of intercourse can give rise to an individual claim.

If you have been cheated on, resulting in the destruction of your marriage, you should contact us. The law in North Carolina may work in your favor and we can advise you on all of your legal options. New Direction Family Law has sixteen years of experience in family law and can assist you with any marital fault claim. Call us today at (919) 719-3470 or contact us online at our website. New Direction Family Law serves Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties.