Alienation of Affection and Criminal Conversation are known as “heart balm” actions where a third party may be sued for interfering with a marriage. North Carolina is one of six remaining states to still allow actions of this nature. In 2010 a NC jury found a mistress liable for $9 million dollars in compensatory and punitive damages. About 200 such actions are filed every year in North Carolina; however, they are facing increased scrutiny and may even be unconstitutional.
What are the elements of Alienation of Affection?
What are the elements of Criminal Conversation?
What if the difference between Alienation of Affection and Criminal Conversation?
Alienation of Affection requires disrupting an intact loving marriage, whereas Criminal Conversation merely requires sex. For this reason the larger verdicts are usually based on Alienation of Affection. Proving Alienation of Affection is usually much more difficult so both actions are almost always brought together.
Who can be sued for Alienation of Affection?
Any third party can theoretically be sued for alienation of affection including in-laws, friends, or even a therapist who encouraged or contributed to the break-up of a marriage. That being said, the actions are usually filed against someone who had a romantic relationship with the spouse of the Plaintiff.
Are there any defenses to Alienation of Affection or Criminal Conversation?
The most common defense is that the marriage was already falling apart and there was no love or affection to be destroyed. Criminal Conversation is essentially a civil claim from adultery, and is a strict liability action meaning if you had sex with a married person you are potentially liable even if you did not know they were married. Potential defenses generally relate to constitutional grounds.
What are reasons to file suit?
Sometimes these cases are filed for revenge, sometimes they are filed for money, and often they are filed for both. Quite often these actions arise from a divorce and are used in leverage relating to spousal support, property distribution, or even child custody. Finally, these cases often ultimately settle when the defendant decides to pay some money to avoid the embarrassment of being exposed for breaking up a marriage.
What are reasons to not file suit?
Suing someone for alienation of affection can be a long and emotional process. The Defendant will likely request a jury trial and attorney fees can easily run $10,000 or more after depositions and litigation expenses. Jury awards can vary dramatically from $1 in nominal damages to $9 million. The other issue is collection. If the defendant has few assets any verdict may be uncollectable as wage garnishment is not allowed in NC for most civil judgments. A final consideration is do you have enough evidence to prove your case? Text messages or testimony from a private investigator can often prove very useful assuming there are no privacy violations which keep your evidence out of Court.
Can alienation of affection be discharged in bankruptcy?
Intentional torts provide a basis to object to the discharge of a particular debt. The burden is on the creditor to file an Adversary Proceeding to prevent the discharge in Chapter 7 bankruptcy under 523(a)(6) and in Chapter 13 bankruptcy under 1328(a)(4).
What is the future of these laws in NC?
Is Alienation of Affection Constitutional?
In 2009 the NC legislature ended claims for post-separation activity by passing NCGS §52-13 that states:
(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.
(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.
(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.
Pursuant to NCGS §52-13(b) any action must be brought within three (3) years of the last act giving rise to the action.
What is the Statute of Limitations for Alienation of Affection?
In 2014, a Superior Court Judge in Forsyth County, NC in Rothrock vs. Cooke (N.C. Super. Ct. June 11, 2014) ruled Alienation of Affection and Criminal Conversation claims to be unconstitutional. The Court held such actions violate both the First and Fourteenth Amendments of the US Constitution by infringing on free speech and free association and the due process protection of private conduct involving consenting adults. Although this decision is not controlling law it is obvious at some point a North Carolina Supreme Court will need to make a ruling as to whether these actions will continue to stand. Most likely it is merely a matter of time before these actions are abolished via judicial or legislative action.