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Alienation of Affection and Criminal Conversation

In the State of North Carolina, a married person may be able to file suit against a third party who has interfered with their marital relationship. North Carolina is in the minority of states allowing these types of actions. These lawsuits are "alienation of affection" and/or “criminal conversation.” The "innocent" spouse typically brings these types of lawsuits against the "guilty" spouse’s paramour/lover. A claim for alienation of affection, however, can also be brought against a third party such as an in-law or other near relative who has advised a defecting spouse to leave the marital relationship. The statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S. Section 1-52(5) is three (3) years. The three-year statute of limitation will begin to run on the date that alienation occurred, which is determined by a court on a case-by-case basis.

When considering an alienation of affection or criminal conversation claim, the date of separation becomes and important date. This date is important because the courts of our State have stated that conduct prior to the date of separation is relevant whereas conduct after the date of separation may not be relevant. It is very important to note, however, that a judge may also consider conduct, which occurs after the date of separation, if that conduct corroborates the conduct that occurred before the date of separation.

In an alienation of affection claim, a plaintiff spouse must show: (1) that the parties were happily married with "genuine" love and affection between them; (2) that the love and affection between the parties was alienated and destroyed; and (3) that the loss of love and affection was caused by the "wrongful and malicious" acts of the defendant. There are virtually no defenses to this cause of action except for a total absence of love and affection. Punitive damages will be allowed under certain circumstances. A defense against an alienation claim may exist if a defendant can show that defendant did not know that the object of his or her affections was in fact married. This, however, is not a defense to criminal conversation. The parties to the marriage must still be together in order to prove this claim.

Criminal Conversation

In a criminal conversation claim, post-separation conduct becomes 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. Criminal conversation is often referred to as a "strict liability tort" because a plaintiff only has to demonstrate that: (1) there existed a valid marriage between the spouses; and (2) evidence of voluntary sexual relations between the defendant and the plaintiff's spouse during the course of the marriage, i.e. adultery. The only real defense to criminal conversation is that the plaintiff spouse consented to the adultery between the defendant and his/her spouse. In criminal conversation, 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 marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage; or that the plaintiff had also been unfaithful.