At our Raleigh divorce law firm, our attorneys often speak with clients whose spouses have cheated. We understand and empathize with the pain and betrayal that comes from adultery, and while there’s no legal remedy that can heal this pain, there are legal options available against the third party, including alienation of affection and criminal conversation.
Understanding Alienation of Affection
In North Carolina, alienation of affection is the legal term for when a third party purposefully interferes in marriage and takes away the affections of one spouse for another, effectively destroying the marriage. If your spouse cheated, you may have a claim against the third party of alienation of affection in civil court.
Additionally, it may not even be a case of an affair. The claim can be maintained against a person who is actively working to destroy two peoples’ marriage and alienate the affection one spouse has for the other. An example of this would be a “friend” who is continually bad-mouthing the friend’s spouse or a mother-in-law trying to turn her child against their spouse.
Proving Adultery in a Case of Alienation of Affection
In order to win this case, it is not necessary to show the physical or photographic evidence, or otherwise prove that a sexual relationship occurred. Instead, the key terms are “inclination” and “opportunity.” Because adultery is a secretive act, the plaintiff only needs to show the inclination to engage in an affair, which can often be done through text and phone calls, as well as the opportunity to do so through sufficient time alone in a place where the act could occur.
Proving Alienation of Affection Against A Third Party
To prove a claim for Alienation of Affection, a plaintiff must show:
- You and your spouse had a genuinely loving and happy marriage prior to the third party (defendant) insinuating themself into your life.
- That love and affection which existed at the time of the actions of the defendant was alienated and destroyed due to the defendant’s malicious or wrongful acts.
Defending Yourself Against Alienation of Affection
If you are accused of this act, the most common defense strategies include: Common defenses to Alienation of Affection claims:
- Proving a lack of love and affection between the two parties. 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, meaning you were tricked or manipulated into beginning an affair in order to end a marriage. (This is rare).
- If acts were committed solely after a separation, the plaintiff doesn’t have a basis for alienation.
- Practical Defense of Poverty of Defendant, which often makes the claims untenable.
Understanding Criminal Conversation
While alienation of affection is a law that is based on simply breaking up a once-happy marriage, criminal conversation is a civil cause of action based on the proven sexual activity with the spouse of another. Simply put, engaging in sexual activity with a married person is a violation of civil law and you can be sued for it in North Carolina.
If you wish to take someone to court for criminal conversation, you would need to prove two things:
- The plaintiff and his or her spouse had a valid marriage at the time of the act;
- Sexual intercourse did occur between the plaintiff’s spouse and the defendant.
Criminal Conversation vs. Alienation of Affection
There are three key differences in how criminal conversation differs from alienation of affection.
- Sexual intercourse must have occurred.
- The marriage didn’t need to be “happy” prior to the affair;
- The adultery does not need to have led to the dissolution of the marriage.
Pursuing Civil Claims in Modern Family Law
The leading factor in deciding whether you should pursue an allegation of alienation of affection or criminal conversation lies in whether you can recover the settlement from the third party and if you can pay the legal fees necessary to take the case to court. Even if you have an excellent case against your husband’s mistress, if she can’t pay what a jury awards or there aren’t assets to seize, it’s a hollow victory.
To help you decide if you should take action, our attorneys often recommend an asset search of any potential parties that may be sued so that our clients can make an educated decision about pursuing these claims. Working with a Raleigh attorney is imperative to have the guidance and clarity needed to move forward or not, as well as your attorney, can connect you with a private investigator.
Additionally, pursuing these claims in court requires you to seek damages. How can you assign a value to marital fidelity or your marriage itself? However, when the conduct is grievous, there is potential for punitive damages.
Leveraging the Alienation of Affection in a Divorce
The most common reason these claims are made is to be used as leverage in a divorce. Often, the spouse who committed the acts will settle for less or give the injured spouse what he or she wants in order to avoid the embarrassment or harm that could come from a litigious divorce.
Schedule a Consultation to Learn More About Alienation of Affection
If you have been the victim of an adulterous spouse and are seeking restitution or a defendant of alienation of affection or criminal conversation case, our Raleigh divorce lawyers 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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