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Montgomery Family Law
Divorce & Family Law

Alienation of Affection & Criminal Conversation

Alienation of Affection

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 themself 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.

Criminal Conversation

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.

In a criminal conversation trial, the innocent spouse has to prove four things:

  1. That the innocent spouse is legally married to the adulterous spouse.
  2. That the act(s) of sexual intercourse took place between his or her spouse and a third party.
  3. That at the time the act(s) occured the adulterous spouse was not physically separated from the innocent spouse with the intent of either spouse that the separation remain permanent.
  4. That the adulterous act(s) took place within the three-year statute of limitations.

So long as the the act(s) can be proved to have occured prior to the date of separation of the spouses, 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. The defendant cannot even raise the defense that the so-called "innocent spouse" had also been unfaithful during the marriage.

How They Differ

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.

Alienation of Affection & Criminal Conversation Laws in North Carolina

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 2010, a jury in Guilford County ruled that a female paramour had to pay 9 million dollars in damages to the innocent spouse. In 2010, a Pitt Couny Superior Court Judge, presiding over a trial without a jury, awarded a 5.9 million dollar "bench verdict" to the innocent spouse. In 2011, Wake County Superior Court Judge Carl Fox ordered a 30 million dollar "bench verdict" in favor of the jilted wife. In this case the defendant did not appear to defend herself in court.

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The contents of this web site relate only to North Carolina Law. Charles H. Montgomery and Scott Montgomery are licensed to practice only in the State of North Carolina. Charles H. Montgomery is a Certified Specialist in Family Law. Certification as a Specialist in Family Law is regulated by the North Carolina State Bar. Montgomery Family Law is located in Cary, North Carolina. Montgomery Family Law does not seek to represent you based upon your visit or review of this website.

The materials included on this website are not intended as legal advice. Readers should not act upon information contained in this website without professional legal counseling.

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