ALIENATION OF AFFECTION

Alienation of Affection

You can seek damages for alienation of affection against a third party who "alienates" the affections of your spouse from you. These actions are typically brought by the innocent spouse against the guilty spouse's alleged lover but can be brought against any third party.

For example, if a your in-law advised your spouse to leave your marriage, the in-law could find himself held liable in an alienation of affections lawsuit. There is a three-year statute of limitations for alienation of affections claims, which means the innocent spouse must file his or her claim within three years of the act.

Criminal Conversation

A criminal conversation action allows you to seek damages from a third party for acts of sexual intercourse with your spouse during your marriage. 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:

Acts of sexual intercourse took place between the adulterous spouse and a third party.
The innocent spouse was legally married to the adulterous spouse when the acts occurred.
The adulterous spouse was not living separate and apart from the innocent spouse when the acts occurred.
The acts occurred within the State of North Carolina.

What Defense Can Be Used for Alienation of Affection & Criminal Conversation?

ALIENATION OF AFFECTION DEFENSE:

Accusations of alienation of affection can be defended by providing proof that the acts of the third party were not the reason for the failure of the marriage. The defense may try to prove that the marriage was already falling apart by bringing up evidence that the married couple were planning on getting divorced, sleeping in separate bedrooms, or going long periods of time without communicating.

In these cases, it is also possible for the defendant to claim that he or she did not know that the unfaithful spouse was married or that his or her actions were never intended to alienate affections within the marriage.

CRIMINAL CONVERSATION DEFENSE:

So long as the acts can be proved to have occurred prior to the date of separation, there is only one defense to a charge of criminal conversation—the plaintiff's consent to, or encouragement of, the adultery before it actually took place.

The defending third party cannot use the defense that they were seduced, that there was consent between the affair partners, or that they were ignorant of the spouse being married. Nor is it a defense that the adulterous spouse was unhappy or being mistreated in the marriage.

What Is the Difference Between Alienation of Affection and Criminal Conversation?

An action for alienation of affections does not have to be based on adultery. This tort is based on the wrongful, malicious acts of a third party with the intention of destroying a marriage or alienating one spouse's affections from the other. To be liable for damages, the plaintiff must prove the third party's wrongful acts caused one spouse to lose affection for the other spouse.

By contract contrast, criminal conversation is identical to the civil legal definition of adultery. It is based on the actual acts of sexual infidelity, and it is generally unconcerned with the motives or intentions of the parties. To be liable for damages, the plaintiff must only prove that the third party had sexual intercourse in North Carolina with a married, unseparated spouse.