What Is An Alienation Of Affection Lawsuit? Alienation of affection(s) is a legal action based on the willful and malicious interference with marriage relations by a third party. It typically occurs when two individuals are married and a third party does something to interfere with that marriage. A common example is when one spouse has been secretly cheating on the other (with the third party) for a substantial amount of time and then is discovered. The “injured” spouse can then bring an action against the third party for alienation of affection.How Common Are Alienation Of Affection Lawsuits?
Over the years, a majority of states have abolished the right to bring an alienation of affection action. It has become viewed as not being relevant or easily applied in modern society, as divorce and adultery have become more widespread. The only states where this lawsuit can still be brought are: Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. All the other states have abolished it either by statute or case law.What Do I Have To Prove To Succeed On An Alienation Of Affection Claim?
To succeed on an alienation of affection claim, the “injured” spouse must show three things:The marriage entailed love between the spouses in some degreeThe spousal love was alienated and destroyedThe third party’s malicious conduct contributed to or caused the loss of affection
It is often not necessary to show that the third party set out to destroy the marital relationship, but only that he or she intentionally engaged in acts that likely would impact the marriage.
Affection between a husband and wife or a parent and child is the fabric that holds a family together. The survival of any emotional relationship depends on the bond between the parties. Sometimes this bond is broken by the actions of others. This is called "Alienation of Affection."
Alienation of Spousal Affection Alienation of Affection occurs when an outside person interferes in the affection between husband/wife. The spouse who feels injured by this interference can bring a lawsuit against the person they think is responsible for the loss of affection.Sexual Relationship & Alienation A sexual relationship does not need to exist between the defendant and the plaintiffs spouse, unlike Criminal Conversation cases.
Proving Spousal Alienation of AffectionTo prove Alienation of Affection allegations in court, the plaintiff needs to show the marriage had love, the love was destroyed, and the defendant deliberately contributed to, or instigated the loss of love/affection. Even if the defendant did not try to break up the marriage, they can be held liable for the loss of affection.States that allow Spousal Alienation of Affection ActionsThere are very few States that still allow Alienation of Affection lawsuits as many considered these laws to be a way to force "morality" on people. Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah still allowed these lawsuits as of 2008. While some States have never passed legislature to abolish Alienation of Affection lawsuits, they do not try them.Parental Alienation of Affection
Parental Alienation of Affection is when one parent attempts to cause, or does cause, a disruption in the relationship between a child and their other parent. The injured party can be the custodial or non custodial parent. Alienation occurs when one parent withholds viable information about their child from the other parent. Often, the offending parent will enlist the aid of the child in the alienation. The parent will encourage the child to withdraw from the other parent.Long Term Effects of Parental Alienation
Children who have been victims of Alienation of Affection suffer long term emotional and life style damage. These children may have an inability for healthy relationships and follow into the cycle of control and alienation. They may leave school and never finish. They may become depressed and self destructive, and convince themselves the alienated parent wanted nothing to do with them.
Alienation of Affection and Criminal Conversation An outsider’s interference with marriage can cost the outsider big bucks in North Carolina. 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.
Moving into the 1990’s, North Carolina juries were even more generous. 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 1997 alone, a jury handed 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.
Even in this decade, the trend of generosity has continued. In August of 2000, a Burke County judge awarded a devastated wife $86,250 for alienation of affection and $15,000 for criminal conversation, totaling $101,250. In May of 2001, in Richmond County, the jury answered the issues of alienation of affection and criminal conversation in favor of the scorned husband and awarded him compensatory damages of $50,000 plus punitive damages of $50,000. Another distraught husband, in Mecklenburg County, received an award of $1.4 million in May, 2001 comprised of $910,000 in compensatory damages and $500,000 in punitive damages.The jury found the doctor who had had an affair with this man’s wife liable for both alienation of affection and criminal conversation. After an appeal the original award of compensatory damages was reversed, the punitive damages award, however, was upheld. In 2007, a Cook County judge ordered a man to pay $4802 to a husband who was grieving the loss of his wife after an affair.
Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has shown no strong interest in abolishing these causes of action, sizeable damage awards remain a real possibility in North Carolina. 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 in any way to these types of actions. Conduct that occurs after the date of separation may also be considered by a judge in two ways. First, if that conduct corroborates the conduct that occurred before the date of separation it will be considered in either claim. Second, if the conduct occurred after the date of separation, but the couple is attempting to reconcile or do not intend for the separation to be permanent, the post-separation conduct in itself could be the basis for an alienation of affection or criminal conversation claim. It is important to note that if a couple is separated, and they intend for that separation to be permanent, then the post-separation conduct cannot be the sole basis for either claim.
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 Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah — which still recognize both alienation of affection and criminal conversation. Forty three states and the District of Columbia have 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 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. The only obvious defense to a claim for criminal conversation is that the plaintiff and his/her spouse were separated and intended for their separation to be permanent. 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 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.
Will the one-year separation start over if my spouse and I resume marital relations?
Under prior case law, living “separate and apart” meant a cessation of habitation as well as sexual relations. The older cases repeatedly held that the separation requirement was not met if, during the one-year period, the couple engaged in sexual relations. Even isolated or casual acts of sexual intercourse were held to halt the statutory one-year period required for divorce predicated on separation. This strict rule about isolated sexual contact created many problems. The Legislature amended the relevant statute in 1987; and the following provision was added: Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll [halt] the statutory period required for divorce predicated on separation of one year. G.S. 52-10.2 provides: “Resumption of marital relations” shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations. Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident of sex is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” for purposes of calculating the consecutive one-year period required for divorce.
What impact could my dating have on postseparation support and alimony?
The impacts in this arena could be quite severe, depending on how long you have been dating other person(s), whether you are the “dependent” or the “supporting” spouse, whether the dating began before or after the date of separation, and whether the dating can be shown to embrace “illicit sexual behavior” or some other marital fault such as “indignities”. As you can see from these conditions, this is a complicated area of our law. Some would say the area is overcomplicated; but you need to learn the details if you are going to make an informed decision about the hazards of dating. If, but only if, (a) your spouse can meet his or her own financial needs and/or you yourself don’t have the ability to contribute to your spouse’s financial welfare, or (shifting the tables) (b) you can meet your own financial needs and/or your spouse doesn’t have the ability to contribute to your financial welfare, then neither postseparation support or alimony can be ordered by a court in North Carolina. In other words, support can’t and won’t be ordered where (a) your spouse is not a dependent spouse and/or you don’t have the ability to pay spousal support or (b) you are not a dependent spouse and/or your spouse doesn’t have the ability to pay you support. If you are in this relatively rare situation, you need read no further. Your dating will not affect spousal support because such support can’t be awarded anyway, on the grounds of absence of dependency and/or ability to pay. Most couples are not in that situation, however. And there are perils to dating for both a dependent and a supporting spouse. The peril is most evident in the realm of long-term alimony. The peril for a dependent spouse is that his or her uncondoned illicit sexual behavior prior to or on the date of separation (if proven by the other spouse) and in the absence of similar acts by the other spouse will bar alimony — no matter how great his or her financial need. The peril for a supporting spouse is that his or her uncondoned illicit sexual behavior prior to or on the date of separation (if proven by the other spouse) and in the absence of similar acts by the other spouse will make an award of alimony mandatory. The rule is different, however, if both spouses are shown to have engaged in such behavior prior to or on the date of separation. In that situation, an award of alimony is within the court’s entire discretion. The judge can make such an award, or not. The rules for temporary postseparation support are a bit more lenient with regard to the possible legal effect of dating during the marriage by the supporting spouse. Because postseparation support looks to financial need of the dependent spouse and the supporting spouse’s ability to pay — without scrutiny of the further extensive list of non-financial factors taken into account during an alimony determination — a supporting spouse’s acts of marital misconduct will not be considered unless the dependent spouse is shown to have committed misconduct prior to or on the date of separation. Thus, the supporting spouse’s dating to the point of illicit sexual behavior will not make an award of postseparation support mandatory, as contrasted to the situation with alimony. Also, the uncondoned illicit sexual behavior of the dependent spouse during marriage does not automatically disentitle him or her from receiving postseparation support, as it might disentitle the dependent spouse from an award of alimony. Rather, the court is required to “consider” that marital misconduct by the dependent spouse in deciding whether to award postseparation support and in deciding its amount. In general, most family law matters are tried only by a judge. But as with a trial on alienation of affection and/or criminal conversation, either spouse may request a jury trial on the issue of marital misconduct in the context of postseparation support and alimony. As mentioned above, jury trials tend to attract the media; and the media tend to like cover stories involving sex. Dating can thus receive more publicity than you ever anticipated. Your desire (or your dating partner’s hope) to avoid such publicity may give your spouse more leverage for a settlement in his or her favor.
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