The dictionary definition of the word “tort” is “a wrongful act resulting in an injury, loss, or damage, for which the injured party can bring civil action....”

The tort of alienation of affections seeks damages against a third party who “alienates” the affections of one spouse from the other spouse. The lawsuit is usually brought by the innocent spouse against the guilty spouse’s lover. An alienation of affections lawsuit, however, can be brought against any third party. For example, one spouse’s in-law who advised the other spouse to leave his or her marriage can find themselves held liable in an alienation of affections lawsuit. There is a three-year statute of limitations for alienation of affections claims. In other words, the innocent spouse must file his or her claim for alienation of affections within three years of the wrongful act or acts that caused the alienation.

The tort of criminal conversation seeks damages for the act of sexual intercourse between the spouse and a third party. Each act of adultery can give rise to a separate claim for criminal conversation.

The majority of states have abolished or severely curtailed the torts of alienation of affections and criminal conversation. In North Carolina, however, these torts are very much “alive and kicking.” In 1997, a jury in Forsyth County ruled that a female paramour had to pay 1.2 million dollars in damages to the innocent spouse. In Alamance County, a jury gave a jilted wife one million dollars in damages. A deceived husband in Wake County received $243,000 in damages. In 1999, a Durham Court Judge ordered the wife’s lover to pay $40,000 in punitive damages to the deceived husband on his criminal conversation claim.

In a criminal conversation trial, the innocent spouse has to prove only three things: Firstly, that the innocent spouse is legally married to the adulterous spouse, secondly, that an act(s) of sexual intercourse took place between his or her spouse and a third party, and lastly, that the adulterous act(s) took place within the three-year statute of limitations. There is only one defense to a charge of criminal conversation – the innocent spouse’s consent to or encouragement of the adultery before it actually took place. The defending third party cannot raise the defense of being seduced by the adulterous spouse or that the adulterous spouse consented to sexual intercourse. The defendant cannot raise the defense of being ignorant that the adulterous spouse was married. Nor can the defendant raise the defenses that the adulterous spouse was unhappy or mistreated in his or her marriage and that the adulterous spouse was separated at the time the adultery took place. The defendant cannot even raise the defense that the so-called “innocent spouse” had also been unfaithful during the marriage.

In contrast, an action for alienation of affections does not have to be based on acts of adultery. This tort is based on the wrongful, malicious acts of a third party which are intended to destroy a marriage or alienate one spouse’s affections from the other spouse. Wrongful, malicious acts will, of course, include sexual intercourse with the unfaithful spouse. To be liable for damages, the third party’s wrongful acts must also be proven to have caused one spouse to lose affections for the other spouse.

Since alienation of affections is based on wrongful acts intended to alienate a spouse’s affections, the defendant can raise the defense that he or she did not know that the unfaithful spouse was married. Or even if the defendant knew that the spouse was married, the defendant can raise the defense that his or her actions were never intended to alienate affections within the marriage.