As a Raleigh divorce law firm, 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. There are, however, some legal options available for redress against an individual who interferes with the marital relationship, and these remedies are known as Alienation of Affection and Criminal Conversation.
What is the Difference Between Alienation of Affection and Criminal Conversation?
These causes of action are related but not the same. North Carolina law recognizes the cause of action for Alienation of Affection, which is when someone takes away the affections of one spouse for another destroying the marriage. North Carolina also recognizes the claim of Criminal Conversation, which involves the act of having sex with someone else’s spouse. These are actions that are filed against the paramour or third party that has taken away the affections, but not the spouse themselves. You cannot file a lawsuit against your spouse specifically for adultery, but the issue of adultery can be factored in a claim for alimony or Divorce from Bed and Board.
Can Adultery be Proven?
While proving adultery is difficult, it can be easier than it may seem. A Plaintiff does not have to prove sex or adultery beyond a reasonable doubt or ascertain any real physical or photographic evidence to be successful.
In fact, all that is required is evidence that tends to show “inclination” and “opportunity.” Adultery by its nature is secretive, and the law recognizes this. Therefore, a Plaintiff need only show that the two individuals liked each other enough to be inclined to commit adultery (lots of texting, calls, flirting, etc) and they that had the opportunity to do so (sufficient time alone in a place where such an act could reasonably take place).
You are not required to have direct evidence of the act itself but must show that both parties had the opportunity and inclination to engage in sexual intercourse with each other and that your spouse has expressed affection for another person that has led to the end of your marriage.
When Should You Pursue a Judgment for Alienation of Affection or Criminal Conversation in North Carolina?
Deciding whether or not to pursue these claims mostly lie in one’s ability to recover monetarily from the paramour, or third party to be served.
For example, you may have an excellent case against your Wife’s boyfriend for having an affair with her, but would he have the ability to pay a large judgment? If you were awarded a jury verdict of $500,000.00, does the boyfriend have the ability to pay the judgment? Assets to seize? If not, you may only have the satisfaction of a large judgment, but not the actual funds themselves. We often recommend an asset search of any potential parties that may be sued so that our clients can make an education decision as to whether this course of action is best for them to pursue.
Keep in mind that obtaining and preserving evidence of the actions of the third parties is crucial in building a successful case.
For this reason, it is imperative that you meet with an experienced Raleigh attorney who can offer guidance on how to best accomplish this as well as put you in touch with a private investigator who is well versed in obtaining evidence of extra-marital affairs and experienced in testifying as a witness in the event of a trial.
Alienation of Affection
Alienation of Affection deals with the purposeful interference and destruction of the love and affection in an existing, happy marriage causing the end of that marriage. This claim is often used when there is an affair, or even an attempted affair that actually destroys a good marriage. The claim can even be maintained against an individual with no love interest, but who just works hard to destroy and “alienate” the affection of the other spouse (picture the evil in-law or bad influence “friend”).
It is a civil claim and usually filed in Superior Court and seeking money damages.
How Can You Prove an Alienation of Affection Claim in North Carolina?
To prove a claim for Alienation of Affection, a Plaintiff must show:
- A happy marriage between you and your spouse with genuine love and affection.
- That love and affection which existed at the time of the actions of the Defendant was alienated and destroyed.
- The Defendants wrongful and malicious acts resulted in the alienation of the previously existing love and affection.
*If you can prove sexual intercourse, the third element of maliciousness is automatically proved.
*Any third party that meets the elements may be sued, not just a lover.
Can You Defend an Alienation of Affection Claim?
Common Defenses to Alienation of Affection Claim:
- Lack of love and affection. Evidence that the marriage was not happy. The marriage does not have to be perfect, but evidence of constant fighting, lack of time together, prior separations, etc., tends to show unhappiness.
- Consent of Plaintiff. Odd, but possible if in “open” marriages or spouse swapping type relationships.
- Connivance, or being suckered into having an affair leading to end of the marriage. Rare.
- Acts that occurred after separation alone cannot be the basis for an Alienation Claim.
- Practical Defense of Poverty of Defendant, which often makes the claims untenable.
Criminal Conversation is a civil cause of action based on the actual sexual activity with the spouse of another.
In other words, sleeping with someone’s spouse is a violation of civil law and you can be sued for it. Again, this is a claim usually made in Superior Court with the Plaintiff asking for a large monetary award. The issues involved are complicated and require the consultation of an attorney familiar with these claims. We have experience both defending and prosecuting such claims. The elements required to prove Criminal Conversation include:
- Valid Marriage between Plaintiff and Spouse.
- Sexual intercourse between Defendant and Plaintiff’s spouse.
As you can see, one major difference between these two claims is that Alienation of Affections requires the destruction of the marriage, while Criminal Conversation does not. Another major difference is the requirement of sex with Criminal Conversation. Criminal Conversation also does not require evidence that the marriage was happy.
Practicality of Pursuing Alienation of Affection or Criminal Conversation in Modern Family Law
Although there are legal hurdles to pass in order to win an alienation or criminal conversation case, the Plaintiff may feel they are warranted in seeking damages. However, there are additional factors to consider before pursuing a judgment.
Can the Defendant Pay a Judgment?
Each year there are still many claims for both Alienation of Affection and Criminal Conversation filed. Every so often a jury in one county or another will hand down a large six or seven figure award. The fact is that in many of the “big” cases you hear about, the Defendant is either unrepresented or fails to show up and offer evidence. This is often the result of a Defendant who lacks the resources for representation or the motivation to fight the claim.
Do You Have a Fair Chance at Receiving Damages?
Let’s face facts. Some people never pay their debts. There are millions of people walking around this country with judgments for money against them that they will likely never pay. There is no such thing as debtors prison, so big judgments do not always mean big pay days. So when considering filing a claim for Alienation of Affection or Criminal Conversation, take a realistic look at the financial reality. Hiring an experienced attorney to represent you in bringing these claims will be expensive (typically 5 to 10 thousand dollars to start), and even if you win you may not receive any money.
On the other hand, if the Defendant is a financially responsible person or has assets and resources, they will suffer from a judgment and forced to pay it (or settle our to court).
How Will the Jury View the Case?
There is also another practical problem with bringing these claims which involves our changing society. Many years ago if you polled a random group of 12 people, they would likely tell you that adultery is a horrible thing that is never justified. Today, it is VERY difficult to find a jury of 12 people where one or more has not cheated on their spouse or where several jurors are not particularly offended by it.
What is the Value of Marriage?
Another practical consideration with these claims is proving “damages.” It is a difficult task to assign a value to sex with one’s spouse or a value to your marriage. There are ways skilled attorneys handle it, including focusing on the happiness lost, future lost, costs involve with divorce etc.
There is also the potential for punitive damages when the conduct is especially outrageous, such as having sex in a marital bed, or a special relationship between Defendant and Spouse such as a minister or therapist where there is a real breach of trust.
Can the Threat of an Alienation of Affection or Criminal Conversation be Leverage in Divorce?
The main practical “use” of these claims in the present family law world is as leverage in divorce cases where there is an incentive for a cheating spouse to settle for less to avoid the cost, embarrassment, or harm which can result in a trial for alienation of affection or criminal conversation. While the lawsuits themselves are against the third party and not the spouse you are divorcing, the cheating spouse is often in a position to put pressure on the Defendant and vice versa to avoid the consequences of litigation.
Contact Us to Learn More About Alienation of Affection: (919) 301-8843
If you have been the victim of an adulterous spouse and are seeking restitution or a defendant of an Alienation of Affection or Criminal Conversation case, our Raleigh divorce lawyer’s can help. Find out how we can provide you counsel and help your case by calling 919-301-8843 or by completing the contact form below.
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