Practice Areas

Alienation of Affection and Criminal Conversation

Alienation of Affection and Criminal Conversation are “tort” claims, or civil wrongdoings, wherein a spouse alleges that a third party is responsible for the destruction of his/her marriage. The premise is that the third party’s actions have deprived a married person of the love, affection, sexual relationship, society, companionship of his/her spouse. These torts have been abolished in all but a handful of states. However, North Carolina recognizes both torts, and it is estimated that over 200 alienation claims are filed in North Carolina courts each year.

While all of those claims ultimately don’t result in trials or money judgments, million-dollar verdicts have been reported. Therefore, it is important that you understand what the law is on alienation of affection and criminal conversation and consult with an attorney about your specific situation whether you believe you have a claim against a third party or if you believe you may be at risk for being sued for alienation of affection and criminal conversation.

I. ALIENATION OF AFFECTION

What the Plaintiff must prove to a jury in an alienation claim:

First, that the plaintiff and her spouse were married and that a genuine marital relationship existed between them.

A genuine marital relationship is one where some degree of love and affection exists between the spouses.  Love and affection may be demonstrated by society, assistance, companionship, comfort, sexual relationship, favorable mental attitude between the spouses. The marital relationship need not be a perfect one nor one free of discord, but must be characterized by some degree of love and affection.

Second, that the genuine marital relationship between the plaintiff and her spouse was alienated.

Alienation means the destruction or serious diminution of the love and affection of one person for another. The plaintiff must prove by the greater weight of the evidence that the love and affection of her spouse for her was seriously diminished or destroyed.

Third, that the controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and her spouse was malicious and wrongful conduct on the part of the defendant which occurred before the plaintiff and her spouse physically separated with the intent on the part of either the plaintiff or her spouse that the physical separation remain permanent.

Conduct is malicious when it is intended to or is recklessly indifferent to the likelihood that it will destroy or diminish a genuine marital relationship. Malice may be shown by evidence that the defendant knew of the marriage between the plaintiff and her spouse and acted intentionally in a way likely to affect the marriage.  Conduct is wrongful when it amounts to an unjustified or unexcused invasion of a genuine marital relationship. (The consent of the plaintiff’s spouse to the conduct of the defendant is no justification or excuse.)

A proximate cause is a cause that in a natural and continuous sequence produces alienation of a genuine marital relationship, and is a cause that a reasonable and prudent person in the same or similar circumstances could have foreseen would probably produce such alienation.  There may be more than one proximate cause of the alienation of a genuine marital relationship. The plaintiff is not required to prove that the defendant’s conduct was the sole proximate cause of the alienation of the genuine marital relationship between the plaintiff and her spouse or that the defendant’s conduct resulted in adultery, a separation, or divorce. Rather, the plaintiff must prove by the greater weight of the evidence that, even though there may have been other contributing causes, the defendant’s conduct was the controlling or effective proximate cause of the alienation of the genuine marital relationship between the plaintiff and her spouse.

II. CRIMINAL CONVERSATION

What the Plaintiff must prove to jury in a criminal conversation claim:

First, that the defendant had sexual intercourse with the spouse of the plaintiff.

In order to establish adultery, the evidence, whether circumstantial or direct, must tend to show both the opportunity and inclination to engage in sexual intercourse. The courts recognize that adultery is usually committed under the most secret circumstance, and it would be rare to discover parties engaging in the adulterous act.

Second, that the sexual intercourse occurred while the plaintiff and her spouse were married and before the date of separation.

A single act of sexual intercourse between the defendant and the plaintiff’s spouse will entitle the plaintiff to recover.  A jury must not consider whether the plaintiff’s spouse consented to or enticed the sexual intercourse; must not consider whether the marital relationship between the plaintiff and her spouse was accompanied by love and affection; and must not consider whether the plaintiff was ever unfaithful to her spouse.

III. DAMAGES

If the Plaintiff proves that the Defendant is liable for alienation of affection and/or criminal conversation, then what is she entitled to collect?

Nominal damages: This consists of some trivial amount, such as one dollar, in recognition of the technical injury incurred by the plaintiff.

Actual or Compensatory damages: This plaintiff must prove, by the greater weight of the evidence, the present value in money of actual damages to the plaintiff resulting from the wrongful conduct of the defendant.  In determining this amount of money, if any, a jury may consider:

  • The plaintiff’s loss of the society, assistance, companionship, comfort, sexual relationship, favorable mental attitude between the spouses which previously existed between the plaintiff and her spouse;
  • any mental anguish, shame, humiliation or disgrace suffered by the plaintiff;
  • any injury to the plaintiff’s health, feelings, or reputation; or
  • any loss of support.

Punitive Damages: These are damages meant to “punish” the defendant rather than compensate the plaintiff.  Any amount a jury awards must bear a rational relationship to the sum reasonably needed to punish the defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. In making this determination, the jury may consider only that evidence which relates to the following:

  • the reprehensibility of the defendant’s motives and conduct;
  • the likelihood, at the relevant time, of serious harm to the plaintiff or others similarly situated;
  • the degree of the defendant’s awareness of the probable consequences of his conduct;
  • the duration of the defendant’s conduct;
  • the actual damages suffered by the plaintiff;
  • any concealment by the defendant of the facts or consequences of his conduct;
  • the existence and frequency of any similar past conduct by the defendant;
  • whether the defendant profited by the conduct; and
  • the defendant’s ability to pay punitive damages, as evidenced by his revenues or net worth.

In a criminal conversation case, sexual intercourse alone is sufficient for the jury to award of punitive damages.

Frequently asked questions

  • Our marriage broke up because my wife had an affair, do I still have to pay her alimony?

  • If the court finds that the dependent spouse participated in an act of illicit sexual behavior, such as sexual intercourse or other deviant sexual acts, during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.

  • I had an affair ten years ago, ... to pay her alimony because of that long-ago affair. Is that true?

  • Any act of illicit sexual behavior by either party that has been condoned, or forgiven, by the other party shall not be considered by the court.

  • What role does marital misconduct play in dividing the marital estate?

  • Marital misconduct, such as adultery, is not relevant in the litigation of property rights. The division of property in North Carolina is based upon the economic factors described above.

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Cary, NC 27511

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