Adultery is one of the most common reasons couples divorce. But, ending a marriage is not always enough to take away the pain of the betrayal. North Carolina is one of the only states that allows an aggrieved spouse to file a tort claim against the third party they believe is the cause of the divorce.
North Carolina’s “heart balm” law
These tort claims are only available in a few states that still recognize heart balm torts. These are legal actions that you can take against a third party for interfering in your marriage.
Either a husband or a wife can file this type of claim, which in North Carolina are called alienation of affection and criminal conversation. Additionally, depending on the circumstances, an aggrieved spouse may also have other tort claims, including a cause of action for intentional or negligent infliction of emotional distress.
Alienation of affection
If you choose to file an alienation of affection claim, you must allege that a third party maliciously destroyed the genuine love in your marriage. There are three different elements that generally need to be proven in a successful claim: (1) that there was a loving and intact marriage between the spouses; (2) that the actions of the third party were maliciously designed to break up the marital relationship; and (3) that the marital relationship was in fact destroyed. For this type of claim, it is important that you and your spouse shared a loving relationship before a third party came into the picture. If your marriage was already in trouble or your spouse had multiple affairs before they met the third party, this may weaken your potential claim.
If you choose to file a criminal conversation claim, you must prove that a third party had sex with your spouse during your marriage. For this type of strict liability claim, it does not matter if the accused person knew that your spouse was married. However, there are other criteria that must be met involving formal separation and the timing of the claim, as well as jurisdictional issues — such as what state the person is a resident of and where the acts occurred — that need to be evaluated to determine whether the claim is viable.
Is there a valid claim?
If your spouse cheated, you may not have to settle only for what you get in the divorce. Find out if it is reasonable to pursue a heart balm claim. Keep in mind that every situation is different, and the best course of action will depend on your unique circumstances.
Likewise, if you were the spouse that strayed, it may be helpful to know what your potential liability or the potential liability of your significant other may be. It is usually best to face these issues head on, rather than be surprised with a lawsuit down the road when you believe everything has been resolved.