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.
Alienation of Affection if the other party lives out of State
Generally speaking, to sue someone in North Carolina they must have some connection to North Carolina. There is a two step analysis to determine whether NC can exercise personal jurisdiction over a non-resident defendant:
If the defendant visited North Carolina and had sex with a married person that would almost certainly qualify, but what about phone calls or Facebook messages across State lines. In 2017, a NC man sued a NFL player for seducing his wife where he alleges the contact that took places across State lines was explicit text messages. The case is still pending, but the NFL player in question recently signed a $100 million contract, which leads into the next question.
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 alimony, 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.
How hard is it to prove alienation of affection?
It can be very difficult to prove if everyone involved is willing to lie under oath and you have no "smoking gun" such as video, pics, text messages, emails, or other physical evidence to show a judge or jury. Even an admission can be later denied in 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 heartbalm laws in NC?
In 2009, the NC legislature ended claims for post-separation activity by passing a new law.
N.C.G.S. §52-13 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.
What is the Statute of Limitations for Alienation of Affection?
Pursuant to NCGS §52-13(b) any action must be brought within three (3) years of the last act giving rise to the action.
Is Alienation of Affection Constitutional?
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.
In 2017, the Court of Appeals issued a ruling in Malecek vs. Williams, COA16 830 (N.C.App 2017) rejecting a constitutional challenge to both alienation of affection and criminal conversation. If this case is affirmed by the North Carolina Supreme Court then is appears these actions will stand unless and until the legislature takes action.