Do I Sue my Spouse for Criminal Conversation or Alienation of Affection?
North Carolina is one of less than ten states that still recognize the torts of criminal conversation and alienation of affection. Although the North Carolina Court of Appeals attempted to abolish both these common law torts, the State Supreme Court reversed the decision. These claims remain frequent in North Carolina and due to the ability to claim punitive damages, significant fees have been awarded.
Unlike family law suits like divorce, child custody and equitable distribution, criminal conversation and alienation of affection actions are not brought against the spouse. Instead, a third party is sued, such as the person the spouse had an affair with, in-laws, etc.
How do I prove Criminal Conversation or Alienation of Affection?
Criminal Conversation requires proof that:
- The plaintiff and his/her spouse were married; and
- The defendant had voluntary sexual intercourse with plaintiff’s spouse during that time.
Voluntary sexual intercourse, i.e. adultery, can be shown by finding an inclination of affection between spouse and defendant, such as hand holding, kissing, or love letters, and the opportunity for sexual intercourse. Defendant need not know of the spouse’s marital status at the time of the intercourse to bar the plaintiff from receiving damages.
Alienation of Affection
Alienation of Affection requires proof that:
- The plaintiff and his/her spouse were married, with at least some love and affection existing between them; and
- The love and affection/marriage was destroyed/alienated; and
- That the controlling cause of the destruction of the marriage was malicious or wrongful conduct of the third party (defendant).
Adultery is not necessary, but malice will be implied if there is proof of adultery. As such, this claim may be brought against third parties such as friends or in-laws.