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An In-Depth Discussion of Alienation of Affections & Criminal Conversation
What do Alienation of Affections and Criminal Conversation have in common?

Alienation of Affections and Criminal Conversation are two separate claims that are often paired together. Both claims are civil actions that are brought against a third party lover, commonly referred to in litigation as a "paramour". For example, let's say a couple is married. In our example assume the wife has an extra-marital relationship that may or may not include sexual relations. As a result of the conduct of the wife's paramour, the wife's relationship with her husband diminishes. The husband (Plaintiff) then may attempt to sue the wife's paramour (Defendant) for either Alienation of Affections and/or Criminal Conversation. This claim is available to both husbands and wives whose spouses have had affairs. Both claims can be raised either before or after the parties separate and divorce. Both claims have a three (3) year statute of limitations. This means the claim must be filed within three (3) years of the actions which give rise to the claims.

The Elements

What evidence do you have to show to make a claim for Alienation of Affections?

The elements of a claim for Alienation of Affections are that:

  • Husband and wife have a marriage that has a genuine love and affection;
  • The love and affection that existed between husband and wife was alienated and destroyed;
  • A lover's wrongful and malicious conduct was the controlling cause of the alienation; and
  • That alienation has damaged the other spouse.

First, it is important to consider that the elements of this claim are tricky because of its very nature. For instance, what is genuine love and affection? How can a jury determine that the love and affection that allegedly existed between a married couple was destroyed because of a third party's actions? Does the third party have to have sex with Plaintiff's spouse in order to cause him or her to alienate his or her affections from his or her spouse? How can you determine what is wrongful and malicious conduct or that the conduct was the controlling cause of the alienation? What kind of damages are we talking about? How can you put a dollar amount on a relationship lost?

Husband and wife must have a marriage that has genuine love and affection

It is hard to pinpoint the definition of genuine love and affection. Alternatively, let us consider some factors that may tend to show when genuine love and affection did not exist in a marriage. This element is incredibly important because it is often the strongest defense for a Defendant. For example, if the married couple had been to counseling or had discussed separation for many months or years prior to the Plaintiff's spouse meeting the paramour, then it is likely that one could argue there no longer existed genuine love and affection. While it is possible this is a strong argument, there is some North Carolina case law suggesting otherwise. One case involves a married couple who had separated prior to the paramour's involvement. This separation was not important. The fact that the married couple had resumed their relationship was evidence they had somehow managed to maintain the necessary genuine love and affection for purposes of the claim. Other case law suggests that even if a Plaintiff had an affair during the marriage, then the genuine love and affection is still not negated for purposes of proving the paramour's wrongful conduct led to the alienation of the spouse's affections. As you can see, these cases are very fact specific. Thus, whether a marriage had genuine love and affection is ultimately a question for the jury to decide on a case by case basis.

The love and affection between Husband and Wife was alienated and destroyed

This element is typically clear if the married couple has separated or divorced immediately subsequent to the relationship with the paramour.

The lover's wrongful and malicious conduct was the controlling or effective cause of the alienation

This element can be broken down into two parts.

First, what is malicious or wrongful conduct? According to Black's Law Dictionary, malice, by definition, is "the intent, without justification or excuse, to commit a wrongful act." In cases of alienation of affections, malice is presumed if the act of seduction or adultery (sexual intercourse) is shown. However, other actions performed by the paramour may rise to the level of malicious or wrongful conduct. For instance, conduct such as excessive telephone calls to and from Plaintiff's spouse or scheduling secret rendezvous may be enough for a jury to consider the conduct malicious and wrongful if a jury determines that the paramour knew the potential harm his or her conduct may cause.

Second, to establish this element one must show that the wrongful acts of the Defendant are the controlling or effective cause of the alienation, even if there are other causes which may have contributed to the alienation. Must the paramour have instigated the resulting alienation? Not necessarily. Affirmative conduct from the paramour will be sufficient. For example, in one North Carolina case, the paramour involved with the Plaintiff's spouse said to the Plaintiff, "I am sorry I have done this to you." When this was coupled with evidence of a hotel reservation, it was enough for a jury to find that the paramour's conduct caused the Plaintiff's spouse to alienate her affections from him. Moreover, there is no need to show that the paramour was motivated by ill will towards the Plaintiff. Finally, there is no need to show that the spouse and paramour even had sexual intercourse in order to prove this element of alienation of affections.

The alienation has damaged the other spouse

Damages are typically defined as a monetary compensation for a loss. There are two types of damages to be considered: compensatory damages and punitive damages.

Compensatory damages are damages that compensate the Plaintiff for the harm caused by the Defendant's conduct. Generally, those damages would include expenses incurred by the Plaintiff for therapy costs, prescription medicine costs (if Plaintiff is facing depression or mental illness resulting from his or her spouse's alienation), loss of services in the home (day-to -day household chores), loss of support (present and future earnings of his or her spouse), loss of consortium (sexual relations), emotional distress, injury to Plaintiff's reputation, costs of litigation (including costs associated with the Alienation of Affections claim as well as the divorce case that may have resulted from a breakup of Plaintiff's marriage.

Punitive damages are damages that are intended to punish a Defendant. For the question of punitive damages to be submitted to a jury in an Alienation of Affections case, there must be evidence of circumstances of aggravation beyond the proof of malice necessary to recover compensatory damages. These specific circumstances of aggravation include willful, wanton, aggravated or malicious conduct. So, first a Plaintiff must show evidence of malice. If the paramour and the spouse had sexual relations, it is likely that malice will be implied. Second, a Plaintiff must show the Defendant aggravated the conduct. Some may say the Defendant poured salt in an open wound. What are some specific circumstances of aggravation? Well, in one case, sufficient evidence of aggravation to justify a punitive damages award existed where the Plaintiff presented evidence that Plaintiff's spouse and the Defendant had sex at least two (2) times, the Defendant accompanied Plaintiff's spouse when returning the children to the custody of the Plaintiff, the Defendant appeared unannounced at the front door of the marital home to ask the Plaintiff if they could be friends, and the Defendant arrived in the driveway of the marital home while Plaintiff was visiting his children. Other circumstances that might suggest the circumstances have been aggravated by the Defendant's conduct may include the Defendant calling and meeting Plaintiff's spouse hundreds of times while having the knowledge of the marriage.

Under North Carolina law, punitive damages are never awarded merely because of a personal injury inflicted, nor are they measured by the extent of injury; rather, they are awarded because of the outrageousness of the Defendant's conduct. However, with outrageous conduct established, a jury still may not find a Defendant should be punished. Finally, in order to recover punitive damages, a jury must first award compensatory damages, even if those compensatory damages are nominal. N.C.G.S. Section 1D-25 and 35. Then, depending on the evidence presented, a jury can determine whether the evidence is sufficient to show that punitive damages should also be awarded.

The Elements of Criminal Conversation

Do not let the name of this claim deceive you. Criminal Conversation is not criminal at all. And, a Plaintiff does not have to show a conversation. In fact, this claim is very simple: if your spouse has sexual relations with a third party then that third party is guilty of Criminal Conversation and civil damages may be sought against the third party.

What evidence do you have to show for a claim of Criminal Conversation?

The elements of a claim for Criminal Conversation are:

  • A lawful marriage existed; and
  • Sexual intercourse between the Defendant and the Plaintiff's spouse, without the Plaintiff's consent.

A lawful marriage existed

Showing a lawful marriage is typically the easiest element to prove. Under North Carolina law, a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each party in the presence of the other, either: in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate and with the consequent declaration by the minister or magistrate that the persons are husband and wife OR in accordance with any mode of solemnization recognized by any religious denomination, or federally or state recognized Indian Nation or Tribe. N.C.G.S. Section 51-1. The parties must have a valid marriage license signed by the register of deeds from the county in which the license was issued, and there must have been at least two (2) witnesses to the marriage ceremony.

Lastly, the man and woman marrying must meet certain age and kinship requirements to wed. N.C.G.S. Section 51-2 - 4. Criminal Conversation does not require that the husband and wife still be living together or still be lawfully married. Criminal conversation can happen even after separation and can be raised by a Plaintiff even after the parties have divorced. However, there is a three (3) year statute of limitations during which the claim can be pursued.

Sexual intercourse between the defendant and plaintiff's spouse, without plaintiff's consent

This element can be either very easy or very difficult to prove. Let's break it down into two parts. The first part requires that the Plaintiff prove sexual intercourse has occurred between Plaintiff's spouse and a third-party lover. If a Plaintiff has physical evidence of his or her spouse and a third party having sexual intercourse, then the element is proven per se, or automatically. This evidence can be either witness testimony and/or physical evidence such as photographs or video. This is rarely the case. More often, it is not that simple or clear-cut. In those situations, a Plaintiff must show that his or her spouse had what is called an "inclination and opportunity" to commit adultery (sexual intercourse). How do you show inclination and opportunity?

Truthfully, it varies from case to case. In one case, a Florida man called Plaintiff's wife at home almost every night. Plaintiff asked Defendant to stop calling his wife. Eventually, Plaintiff's marriage to his wife collapsed. However, the Court of Appeals stated that mere conjecture about sexual intercourse is not enough and that inclination and opportunity must also be present. Thus, a Plaintiff must show circumstantial evidence. For example, a Plaintiff may have evidence of a hotel key with reservations made and witnesses' testimony that Plaintiff's wife and Defendant went into the hotel room at night and departed early the next morning wearing different clothes. This may be considered inclination and opportunity. However, it is essential to remember that this question is one for the jury to decide and therefore, often extremely difficult to prove without compelling evidence. The second part of the element requires that Plaintiff did not consent to his or her spouse's conduct with a third party. If the Plaintiff consented to the action then he or she has no claim for Criminal Conversation (or Alienation of Affections). BUT, the act of forgiveness or continuing to live with the spouse after the fact does not constitute consent. A Defendant's evidence of consent is a strong defense to this claim.

Okay, so if you can show your spouse has committed adultery, can you get monetary damages?

Maybe. As in claims for Alienation of Affections, there are two types of damages to be considered. The first type of damages are called "Compensatory Damages." The second type of damages are called "Punitive Damages". Compensatory damages are damages that compensate the Plaintiff for the harm caused by the Defendant's conduct. Generally, those damages would include expenses incurred by the Plaintiff for therapy costs, prescription medicine costs (if Plaintiff is facing depression or mental illness resulting from his or her spouse's alienation), loss of services in the home (day-to -day household chores), loss of support (present and future earnings of his or her spouse), loss of consortium (sexual relations), emotional distress, injury to Plaintiff's reputation, costs of litigation (including costs associated with the Alienation of Affections claim as well as the divorce case that may have resulted from a breakup of Plaintiff's marriage.

Punitive damages are damages that are intended to "punish a Defendant". A jury may consider the issue of punitive damages for Criminal Conversation based solely upon evidence that Defendant engaged in sexual intercourse with Plaintiff's spouse. Once established, Plaintiff is entitled to recover, as a matter of law, nominal damages which in turn supports a punitive award. However, it is important to remember that damages are also a question for the jury and nominal damages can be as little as $1.00.

Defenses

Some defenses to both claims may include:

  • Invasion of Privacy.
  • Malicious Prosecution, which is the filing of a lawsuit with the intention of creating problems for the defendant such as costs, attorneys' fees, anguish, or distraction when there is no substantial basis for the suit.
  • Intentional Infliction of Emotional Distress which is the causing severe emotional distress in a person by means of conduct of an extremely outrageous nature or;
  • Abuse of process.


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