Alienation of Affection

Alienation of Affection and Criminal Conversation
(Otherwise known as Heart Balm Torts)

North Carolina is in the minority of states that still allows a spouse to sue for alienation of affections and/or criminal conversation. Essentially, North Carolina allows a husband or wife to sue a third party for damages as a result of an emotional or physical affair with their spouse during the course of the marriage. However, the courts will also consider post-separation conduct when determining what if any conduct would constitute an actionable and compensable claim. It is important to note that for the claim of criminal conversation, post-separation conduct itself is grounds for compensation under the tort.

Alienation of Affection

To prevail in a claim for alienation of affection, one would need to be able to show that: (1) plaintiff and his or her spouse were happily married, and genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of the defendant produced the alienation of affection.

Criminal Conversation

To prevail for a claim of criminal conversation, one would be required to present evidence to show: (1) marriage between the spouses and (2) sexual intercourse between defendant and plaintiff's spouse during the marriage.

Note the distinct differences between the two actions. Criminal conversation only requires a marriage and sexual intercourse. This cause of action will still accrue even if the parties are separated, but waiting for the statutory period of one year to pass before being able to file for divorce. It does not make a difference whether the marriage between the spouses was a happy and loving marriage; it does not matter if the spouse that engaged in the other relationship was abused or mistreated, nor whether or not the other spouse had been unfaithful.

Unlike a claim for criminal conversation, the party who sues for alienation of affection must affirmatively prove that the marriage between the married couple was happy and that the parties had a genuine love and affection between them. Therefore, the person being sued may not be liable if he or she could show that the parties had an unhappy marriage. Similarly, the person being sued would have a defense if it can be shown that the individual having an affair did not know that the person with whom he/she was having an affair was married, that the complaining spouse consented to the relationship, or that the effect on the marriage was unintended.

Here are a few common examples of how at least one of theses causes of action may apply to several common situations:

  1. John meets Amy, via the Internet, phone or in person. He tells Amy that he is single. They date and ultimately have sexual relations. John’s wife finds out about the affair. John’s wife can sue Amy.
  2. John meets Amy, via the Internet, phone, or in person. John and his wife have been sleeping in separate bedrooms for some years now. John wife tells him she loves him but is not in love with him and refuses physical intimacy. John tells Amy that he is married and they do not engage in sexual relations. They do form a serious deeply emotional relationship. John's wife finds out about the affair. John’s wife can sue Amy.
  3. The parties sign a separation agreement stating that they can live separate and apart as if they were married. John, after signing the agreement, meets Amy. They engage in a sexual relationship. John’s wife finds out about the affair. John’s wife can sue Amy.

Regardless of the circumstances, extramarital affairs generally result in a difficult and often painful conclusion to a marriage. There are no easy answers. However, in times such as these, it is important to have a strong and knowledgeable legal advocate to help protect your rights and ease your mind. At Hopper Law Firm, that is just what we strive to do.

If you would like further information regarding Heart Balm Torts, or have questions regarding your individual situation, please Contact Us today to schedule a consultation with one of our experienced Family Law attorneys.

Prior to your appointment, you may wish to download and complete our Family Law Intake form to bring with you when you come.

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Areas We Serve

The attorneys of Hopper Law Firm have practiced law predominantly in Raleigh, North Carolina (Wake County) and the greater Triangle area since 1994. However, depending upon the nature of the case, we often serve clients in the surrounding counties, including: Durham, Chatham, Orange, Johnston, Franklin, Harnett, Guilford, and Cumberland.