Interference by Others in the Marriage: Alienation of Affection and Criminal Conversation

When a person interferes with a married couple’s relationship, there may be grounds for a lawsuit against that person. This most often occurs when a spouse has an extramarital affair. There are two claims that a spouse may file against this person in North Carolina: alienation of affection and criminal conversation.

Alienation of Affection

North Carolina is one of only seven states that still permits lawsuits for alienation of affection (the other states at the time of this article are Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah). The complaining spouse must prove three elements to pursue this claim:

  1. The couple was married, and genuine love and affection existed between them;
  1. This existing love and affection was alienated and destroyed; and
  1. The wrongful and malicious acts of the defendant (the person interfering in the marriage) caused the loss and alienation of love and affection.

As to the first element, genuine love and affection does not mean a perfect marriage of “untroubled bliss.” On the other hand, an unhappy marriage may be asserted to defend against this claim if the defendant is able to show to that there was no love and affection between the spouses.

Regarding the third element, the plaintiff is not required to show that the defendant intentionally destroyed the spouses’ love and affection. Instead, the plaintiff need only show that the defendant intentionally engaged in conduct that would very likely negatively impact the marriage. Evidence of sexual intercourse by the defendant with the plaintiff’s spouse is commonly used as evidence of the defendant’s wrongful and malicious acts; however, sexual intercourse is not required to bring a claim for alienation of affection. For example, if a spouse’s parent alienates and destroys the married couple’s love and affection, that parent may be sued for alienation of affection.

Criminal Conversation

Despite its name, criminal conversation is a civil claim. There are three elements for this claim:

  1. Actual legal marriage between the plaintiff and the allegedly adulterous spouse;
  1. Sexual intercourse between the allegedly adulterous spouse and the defendant; and
  1. The sexual intercourse occurred before the plaintiff and the allegedly adulterous spouse’s date of separation.

Unlike an alienation of affection claim, a claim for criminal conversation requires proof that a spouse had sexual intercourse with the defendant. Further, the state of the marriage (whether it was a happy marriage with love and affection or an unhappy marriage) does not matter. All that matters is that the spouses were legally married and had not yet separated with the intent to remain permanently separated at the time the sexual intercourse occurred.

When being sued for alienation of affection, the defendant may defend him or herself by showing the court that he or she did not know that the adulterous spouse was married. However, this defense is not available for criminal conversation. Likewise, with alienation of affection, the defendant may assert as a defense that the complaining spouse consented to the affair. Such a defense is not available in response to a criminal conversation claim.

To be clear, both claims for alienation of affection and criminal conversation require that the act of the defendant that gives rise to such claims must have occurred before the married couple’s date of separation (meaning the date that the couple separated with the intent by one or both of them that the separation be permanent). See North Carolina General Statute Section 52-13(a). If the act occurred after the date of separation, the judge may only consider that act as evidence to support (corroborate) acts that occurred before the separation.

Claims for alienation of affection and criminal conversation must be brought within a certain period of time (what is legally known as the statute of limitations). The claim must be brought within three years of the date of the last act of the defendant that gives rise to the claim (for example, the act of sexual intercourse). See North Carolina General Statute Section 52-13(b).

While many people view these claims as archaic, they are still valid claims in North Carolina that may result in large monetary awards. Understandably, these cases are often embarrassing for all persons involved. If you believe you have grounds to assert either or both of these claims, or if you are on the receiving end of these claims as a defendant, you should strongly consider discussing the matter immediately with an attorney experienced in handling claims for alienation of affection and criminal conversation.

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