What is Alienation of Affection in North Carolina
North Carolina is one of the few remaining states that still recognize the heart balm torts of alienation of affections and criminal conversation. As such, you may have the remedy of suing the person who wrecked your marriage, either due sexual relations outside of marriage and/or interfering with the marital relationship itself.
Juries in North Carolina occasionally award big-time damages in such cases, resulting in national media attention. Obviously, a lot depends on the nature and circumstances of the individual claims.
At Powers Law Firm, we understand the complexities of North Carolina divorce laws and can guide you through the step-by-step process of filing claims for alienation of affection and criminal conversation in Superior Court. As you might understand, it can be a complicated process.
The elements of an alienation of affection claim are:
- the existence of a marriage that can be characterized as a genuine loving and affectionate relationship;
- the love and affection of one spouse for the other is alienated and destroyed; and
- the wrongful and malicious conduct of the defendant is the controlling cause of this alienation.
Unlike the Common Law tort of criminal conversation, the spouse pursuing an alienation of affections claim does not have to prove that the cheating spouse had sex with a third party in order to satisfy the malice requirement of the claim for damages.
However, malice may be inferred if sexual relations can also be proven.
Additionally, you do not have to show that the interloper sought to enter into the conduct in order to destroy the relationship. Rather, you can satisfy the malice aspect of the claim by showing the offending party knew or should have known that his or her conduct could have a potential foreseeable impact on the marriage and possible divorce.
Your marriage isn’t required to be the epitome of perfection. If that were the case, it would be impossible to ever prove alienation of affections. Clearly, no one has a perfect marriage.
As such, you do not have to show that your marriage was blissfully happy and without problems. Rather, in order to survive a motion to dismiss, all you must show is that some love affection was present between you and your significant other.
Furthermore, your claim may still viable even if it was your spouse who initiated the contact with a third party to engage in an extra-marital relationship. All you must show is that the person you are suing was an active participant, initiated, or encouraged the affair, knowing they were interfering with a marriage.
It is imperative that you gather and retain all evidence that shows you and your spouse had a relationship with genuine love in affection. For example, make sure to keep all cards, letters, social media posts, pictures, etc. that highlight this.
Also, make sure to retain any evidence that proves your spouse is engaged in illicit extra-marital activity with a third-party.
** Attempts to collect evidence and/or proof of a cheating spouse may be subject to civil and criminal laws in North Carolina. Talk to a lawyer before doing anything. Do not mirror cell phones, access computer files, and/or take action of any sort on your own. Talk to an attorney immediately.Criminal Conversation
Unlike alienation of affection, criminal conversation requires proof of sexual intercourse between your spouse and a third party. The only other requirement you must prove under this tort is that you and your spouse were actually married.
The civil lawsuit for criminal conversation is NOT a criminal charge in North Carolina. No one is going to jail for adultery. While that may have been true under the English Common Law, where heart balm torts originate, that is no longer the case.
Criminal conversation is what many family law attorneys refer to as a strict liability cause of action. Put simply, it doesn’t matter if you didn’t know you were having sex with a married party. At the same time, both claims are precluded if you are legally separated at the time.
You can prove sexual intercourse with direct or circumstantial evidence. For example, witnessing your spouse and another woman or man enter a hotel room and stay for extended periods of time may be utilized as circumstantial evidence of sexual intercourse.
Damages associated with such matters may involve Punitive Damages.Call NOW to Speak with our Divorce Lawyers Charlotte NC
We’re here to help through difficult times. Clearly, this is a difficult thing to endure. A cheating spouse is the ultimate betrayal. You may be angry not only on your marriage partner but also the interloper.
That’s both normal and understandable. While it may be tempting to look for evidence or proof of infidelity, it really is a good idea to speak with an attorney.
Call Bill Powers now at: 704-342-4357