Unless you want to pay your lover’s spouse a large sum of money, it’s suggested you think twice before having that affair.
North Carolina is one of only six jurisdictions that recognize alienation of affection. Known as a “heartbalm tort,” alienation of affection suits brought by a spouse against a third party who they claim maliciously interfered in the marriage causing damage and, consequently, separation or divorce.
Unlike the similar “heartbalm tort” of criminal conversation, alienation of affection does not require the plaintiff prove the defendant participated in extramarital sex. Instead, the plaintiff needs to show the following: a marriage involving genuine love and affection exists at the time of the affair; the loss of that love and affection; and that the defendant’s conduct caused the loss of that love and affection.
The finding of whether a genuine love and affection existed in the marriage is critical and fact specific therefore left for the jury to decide case by case.
Some North Carolina case law suggests marriage counseling or discussing separation prior to a spouse meeting their lover is evidence that genuine love and affection no longer existed.
Another case suggests that separation is not necessarily important, and reconciliation attempts after separation was proof enough that the couple maintained genuine love and affection. After showing genuine love and affection existed within the marriage, the loss of that love and affection is usually evidenced by a separation or divorce.
The last element has been “loosely defined to include any intentional conduct that would probably affect the marital relationship.” Jones v. Skelley, 195 N.C. App. 508, 673 S.E.2d at 391. The plaintiff does not need to prove extramarital sex took place or that the defendant wanted to ruin the marriage. Instead, the plaintiff only needs to show that the defendant intentionally engaged in conduct that was likely to damage the marriage.
If a plaintiff is able to prove these elements to the court’s satisfaction, the payout could be huge. As recent cases have shown, multimillion-dollar verdicts are not uncommon in North Carolina. The award will be decided by the jury and depend on a multitude of factors such as intent of the defendant and their net worth. It is important to note, however, that many cases have produced damages well below one million dollars and, most suits end up being settled outside of the courtroom.
When considering whether to file an alienation of affection suit, it is important to keep in mind N.C.G.S. § 52-13. This statute provides limitations for filing an action for alienation of affection or criminal conversation. Conduct by the defendant that occurs after the plaintiff and their spouse have physically separated with the intent of permanent separation, will not give rise to a cause of action.
In addition, an action for alienation of affection cannot be brought more than three years from the last act of the defendant and, an action may only be brought against a natural person.
Additionally, if you are worried an alienation of affection suit isn’t possible due to an out-of-state defendant, North Carolina has a “long arm” statute allowing the courts to have jurisdiction over defendants not living in North Carolina. North Carolina courts have held that jurisdiction is proper for a claim of alienation of affection where the defendant’s conduct occurred in North Carolina or where the defendant sends communications to a spouse residing in North Carolina.
To know whether you have a claim for Alienation of Affection you should discuss the specifics of your situation with an attorney. Contact Plekan Law, PLLC to schedule a consultation.