PLAYING WITH FIRE... AND PAYING FOR IT
ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION LAWS
You meet a guy. He happens to be married and tells you that he is “in the process of separating from his wife.” You believe him, and the two of you begin a blissful relationship with one another. Your new boyfriend then becomes involved in a nasty divorce case, but he assures you that his case has nothing to do with you. Right? Well then why is there a Sheriff knocking on my door wanting to serve me with legal papers?
Despite having been abolished in most states, North Carolina is one of only a handful of states which law still allows actions to be filed for Alienation of Affection as well as Criminal Conversation. In an Alienation of Affection case, a scorned spouse can sue his/her spouse’s boyfriend/girlfriend blaming the paramour for essentially destroying the marriage. For a suit to be successful, the moving party must prove that the marital relationship was a loving and healthy relationship which was destroyed by the actions of this third person. Alienation of Affection claims are most often joined with a claim for Criminal Conversation. To prevail in a Criminal Conversation case, the Plaintiff – or spouse filing the claim – need only prove that the Defendant engaged in sexual relations with the Plaintiff’s spouse during the couple’s marriage.
In North Carolina, these claims seem to be most often filed while litigation between the divorcing spouses remains pending. For example, husband and wife may be having difficulty agreeing how much monthly support might be appropriate or on how to divide up a couple’s marital assets. Alienation of Affection lawsuits are being used by North Carolina litigants and their attorneys in an attempt to gain leverage in divorce cases. In other words, a wife who was cheated upon during her marriage might suggest that she would drop or settle the lawsuit against the husband’s girlfriend if husband agreed to divide the couple’s assets unequally in wife’s favor, etc. As the defense of Alienation of Affection and Criminal Conversation cases can be embarrassing and costly to the paramours, such tactics are sometimes successful.
Lawyers must advise their clients as to the potential liability which exists when their clients begin dating even after separation. A claim for criminal conversation can even be brought based upon sexual relations with a married person which occurred months after a couple’s separation. While these cases are rare and unlikely to result in substantial jury verdicts, separated persons and those romantically involved with separated persons must be aware of the potential liability and seek legal advice with an experienced attorney in an attempt to reduce their liability.
In sum, these causes of action are very unpopular with many lawyers and legislators and may eventually be abolished in North Carolina. But so long as these causes of action remain viable, separating spouses and those involved in relationships with separating spouses must be keenly aware of the liability which may ensue as a result of their actions.
Pete McArdle is an attorney in the Charlotte office of Knox, Brotherton, Knox and Godfrey. He can be reached at 704-315-2363 or 866-704-9059 (Toll free) or pmcardle@knoxlawcenter.com.
(written by Pete McArdle)
