Having an affair in North Carolina can prove to be a costly decision not only for the adulterous spouse, but also for the paramour who engages in the relationship with the married person.
North Carolina is one of a handful of states that still recognize the "Heart Balm Torts" of Alienation of Affections and Criminal Conversation as legal causes of action. While the vast majority of states have abolished these causes of action, in North Carolina courts have continued to award jilted spouses with verdicts in excess of $5 million dollars in some cases.
The first important consideration to keep in mind when deciding whether you believe you may have a claim for Alienation of Affections or Criminal Conversation against a third party is that they are two distinctly different claims.
Alienation of Affection
In order to prevail on a claim of Alienation of Affections, you must be able to show evidence of the following:
1. You and your spouse had a genuinely loving, affectionate and intact marriage.
2. That love and affection was alienated and destroyed by a third party.
3. The third party acted wrongfully and maliciously and their actions alienated your spouse's affection from you.
The first element, that you and your spouse had a loving and intact marriage at the time of the affair, is often the critical factor in determining whether or not you will succeed in suing a third party for Alienation of Affections. The spouse who engaged in the alleged affair will often admit to having the affair, but will deny that any love or affection existed in their marriage at the time the affair occurred.
Once you've overcome the initial hurdle of proving that some amount of love and affection remained in your marriage, you then have to demonstrate to the court how the actions of the third party were wrongful, malicious, and ultimately alienated your spouse's affections from you. Unlike Criminal Conversation (discussed further below), you do not have to prove that the third party engaged in sexual intercourse with your spouse. If it should have been foreseeable to the third party that their actions would alienate your spouse's affections from you, then evidence of that third party's actions is sufficient to prove they acted wrongfully and maliciously. For example, if your spouse is the one who initiates the flirting and inappropriate conversation and the third party encourages this behavior to the point of alienating your spouse's affections from you, they have acted wrongfully and maliciously. However, sexual intercourse creates a presumption that the Defendant acted maliciously if there is evidence that sexual intercourse occurred.
Unlike Alienation of Affections, a claim for Criminal Conversation does require the Plaintiff to prove that sexual intercourse occurred between your spouse and a third party during your marriage to your spouse. Criminal Conversation is also a strict liability tort, meaning that all you have to prove is that sex occurred and defenses like you didn't know the person was married (which may help in regards to the alienation of affection claim) are not a defense.
Fortunately for Plaintiffs, you do not have to have the "smoking gun" or direct evidence of the sexual intercourse occurring. Circumstantial evidence is sufficient to prove to the court that sexual intercourse occurred. Examples of this evidence include, but are not limited to, private investigator reports, phone call and text message records, text message and email communications, and any and all other circumstantial proof that shows by the greater weight of the evidence that sexual intercourse occurred between your spouse and a third party during the marriage.
Statute of Limitations
One of the most critical defenses to claims for Alienation of Affections and Criminal Conversation to be aware of is the Statute of Limitations on both claims, found in N.C. Gen. Stat. § 52-13.
Pursuant to the statute N.C. Gen. Stat. § 52-13, a Plaintiff filing claims for Alienation of Affection and/or Criminal Conversation must file their lawsuit against the third party within three (3) years from the last act giving rise to the cause of action. Failure to do so will preclude the Plaintiff from proceeding on either of said claims.
What determines the "last act giving rise to the cause of action"? This is a critical question that an experienced attorney can help you answer based on the facts and circumstances in your case. First and foremost, the statute makes it clear that the last act giving rise to the cause of action must have occurred prior to your physical separation from your spouse. Physical separation is defined by North Carolina case law as the date you and your spouse began living in separate residences with the intent to remain separate and apart.
Second, the last act itself (i.e. sexual intercourse and/or your spouse's affections being alienated completely from you) could be an act that you are not aware of until months or years after your date of separation. Fortunately, by scheduling a consultation with an attorney you will receive legal guidance on these claims and the circumstances of your case that will help you determine whether to file and how soon that process must begin.