ALIENATION OF AFFECTION is one of the most difficult discussions to have, is with a Client who has recently discovered the pain and betrayal that comes with adultery. There is nothing like discovering with certainty that your spouse has had or is having an affair. There is no legal remedy that can take away the pain and anguish they are feeling. North Carolina is one of six states in the country that have alienation of affection laws, which allow people to sue their spouse’s lover if they can prove that the defendant caused the couple’s marriage to fall apart. What do you need to show:
- Plaintiff and spouse were happily married and a genuine love and affection existed between them;
- The existing love and affection was alienated; and
- The malicious conduct of defendant was a cause of the loss and alienation of such love and affection.
This claim will also survive even if you cannot prove that the mistress was the one in fact doing the “luring,” and it was your spouse who initiated contact and pursued her. You have a claim if you can prove that the person you are suing was an active participant, initiated, or encouraged the affair.
With alienation of affection, you don’t have to prove that your spouse had extramarital sex, only that the third party’s wrongful conduct led to the end of the marriage and the resulting loss of affection. There is also another legal remedy that can sometimes be tied to Alienation of affection, called Criminal Conversation. Criminal Conversation differs from alienation of affection because it requires proof of sexual intercourse outside the marriage. Just like with alienation of affection, you will need to prove two essential elements:
- Actual marriage between you and your spouse and;
- Sexual intercourse between your spouse and a third party during the marriage.
The evidence for Criminal Conversation claims does not need to be direct evidence, it could simply be circumstantial. Everything from phones calls or text messages to social media messaging, can be subpoenaed and used against your spouse. However there is a very important key to both claims for criminal conversation and alienation of affection:you cannot bring a suit for either claim until there has been a separation with the intent that the separation remain permanent.