Non-lawyers are often surprised to learn that a spouse can sue for money damages in North Carolina based on allegations of emotional harm caused by a third party to the marital relationship. These lawsuits for "alienation of affection" and/or "criminal conversation" are usually brought by the innocent spouse against the guilty spouse's lover; but an alienation action may also be brought against someone like an in-law or other near relative who has advised a defecting spouse to leave the marital relationship. There is a three year statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S. Section 1-52(5). This statute starts on the date that alienation occurred, which is determined by a court on a case-by-case basis.
Fairly high-dollar awards in such cases have existed here for a number of years, a fact not generally known. As long ago as 1926, for instance, a jury in Macon County rendered a verdict in the amount of $12,000 against the lover of plaintiff's wife. A 1931 jury in Forsyth County held against plaintiff wife's father-in-law for $38,000. A Rowan County jury awarded $30,000 against a husband's girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000.
In the past several years, however, North Carolina juries have become even more generous, in 1997 alone handing down $1.2 million against a female paramour in Forsyth County and awarding another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife's lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim. Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has also shown no strong interest in doing so since that time, sizeable damage awards remain a real possibility in North Carolina. At the present time, more than 200 alienation actions are filed in an average year.
Conduct after date of separation
The date of separation is an important date in alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant's malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim. It is important to note, however, that conduct which occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation, but is enough on its own to maintain an action for criminal conversation.
North Carolina is in the minority
The existence of continuing cases of this sort in North Carolina appears to surprise lawyers and residents in many other states because we are now in a very small minority of jurisdictions -- including Hawaii, Illinois, Mississippi, New Mexico, South Dakota and Utah -- which still recognize both alienation of affection and criminal conversation. As of July 2003, 43 states and the District of Columbia had abolished the cause of action for alienation of affection. The states vary widely in the way they deal with this issue: in some states, only one of the two causes of action continues to exist, and thus proof of the claim and/or damages have been significantly curtailed in recent years. None of these reforms has altered the stance favoring such claims in this State.
Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff's spouse. Criminal conversation is something like a "strict liability tort" because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff's spouse. It is not a defense that: the defendant did not know the other person was married, that the person consented to the sex, that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant's sex with the spouse did not otherwise impact on the plaintiff's marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff "consented" to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.
Alienation of Affection
An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant's malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim -- but not to a claim for criminal conversation -- where it can be shown that defendant did not know that the object of his or her affections was in fact married. As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant's conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.
Criticism of these laws
Critics of such laws call them obsolete methods for legislating morality (despite the fact that most criminal laws could be said to legislate morality). Critics also say the laws do not fulfill their purpose of protecting marital relationships, inequitably punish only one of two guilty parties, and serve as an excuse for blackmail or forced settlements. The critics add that such suits can also be misused by embittered spouses seeking vengeance against a third party interferer and that injured spouses cannot possibly be compensated for a lost marriage. On the other hand, defenders point to the virtual non-existence of criminal prosecutions for adultery in current American culture, a need to uphold the sanctity of the marriage vows through some kind of formal legal sanction for violation of marital promises, and the potential deterrence of rampant extramarital affairs by means of the threat of monetary damage suits. Defenders also point out that adultery has a very long history of illegality; and that it is therefore appropriate for the civil laws of criminal conversation and alienation of affections to perpetuate Western culture's longstanding disapproval, by law and by custom, of extramarital affairs.
Whether one thinks it is a good or a bad situation for North Carolina to continue to recognize such claims by spouses claiming injury to their marriages may largely depend, then, on one's views of the need in the 1990s for protection of the marital relationship through civil litigation against the non-spouse wrongdoer and for monetary remedies for the alleged harms caused to that relationship. Indeed, some commentators have mentioned that high jury verdicts and the renewed popular interest in lawsuits for alienation of affections and criminal conversation may signal a growing societal disaffection with overly permissive sexual standards and a desire for stricter enforcement of family values. Pro-family writers believe it important that deceived spouses have litigation-oriented opportunities for vindication and that society retain this acknowledgment, however marginalized at present, of the supremacy of the institution of marriage against unwarranted intrusion. Ultimately, of course, these are all subjective and philosophical viewpoints likely to vary considerably from person to person. Visit http://www.rosen.com for more information.
Lee S. Rosen is a Board Certified Family Specialist and founder of Rosen Divorce in North Carolina. With offices in Raleigh and Charlotte, Rosen Divorce is the largest divorce firm in the Southeastern United States. Visit http://www.rosen.com for more information.