Suing Your Unfaithful Spouse’s Lover
North Carolina is one of only a small handful of states that allows for the filing of a lawsuit and cause of action against your unfaithful spouse’s lover. The North Carolina Court of Appeals recently upheld the ability in some cases to sue the person who had the affair with your spouse. This is called “alienation of affection,” or interference with a marriage, and “criminal conversation,” or adultery, as the basis.
The court of appeals noted, “They further the state’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken.” They added, preventing “personal injuries and societal harms is a substantial government issue.”
The court rejected the argument that the laws are unconstitutional because they violate individual rights to intimate sexual activity and expression with other consenting adults.
So, what are alienation of affection and criminal conversation, and how do they come into play in North Carolina family law matters?
Alienation of Affection
When you bring a cause of action for alienation of affection, you’re suing a third party you believe to be responsible for the demise of your marriage. In most cases, this is a spouse’s lover, but that’s not always the case. In some matters, someone like a therapist or clergy member have advised someone to seek divorce, which falls under alienation of affection.
Alienation of affection cases require proof of elements like:
- There was a marriage with love and affection between spouses to some degree;
- The love and affection were indeed alienated and destroyed; and
- The malicious acts of the defendant contributed to or were responsible for that loss of love and affection.
The standard of proof in these causes of action typically revolves around showing the defendant intentionally engaged in acts that would impact the marriage, not necessarily that they intentionally set out to destroy someone’s marriage.
Criminal conversation is a cause of action that typically accompanies alienation of affection lawsuits, and is a tort that arises from the act of adultery itself. The term conversation is an antiquated reference to sexual intercourse, which is pretty much obsolete except as used in this legal setting. In order for criminal conversation to apply, there must be an actual marriage between plaintiff and the spouse, and there must be sexual intercourse between the defendant and plaintiff’s spouse during that marriage.
Amendments to the Law
Not surprisingly, lawsuits for alienation of affection are hotly debated, which has led to some modifications to the law in recent years. Additional terms under § 52-13 Procedures in causes of action for alienation of affection and criminal conversation include:
- There is no cause of action if the alienation of affection and criminal conversation occur after the plaintiff and plaintiff’s spouse physically split
- An action shall not be commenced more than three years from the last act of the defendant giving rise to the lawsuit
- You can only sue a natural
Understanding Your Legal Rights
Alienation of affection and criminal conversation cases are not always applicable in every situation, but it’s important you understand your legal rights and available options. If you think your spouse may be cheating, contact the experienced family law attorneys at Powers Landreth PLLC today for a consultation.
So, you have a cheating spouse. Or maybe you’re the spouse having an affair? What does that mean for a divorce? It can be relevant for quite a few different things.
First, there are two types of divorce in North Carolina. The first and most common divorce is generally referred to as an absolute divorce. An absolute divorce can be granted one year and a day after the spouses separate. There is “no fault” required for an absolute divorce. Once an absolute divorce is granted, the spouses are no longer legally married. The second type of divorce is called divorce from bed and board. This divorce does require fault, meaning the filing spouse must show injury from the accused spouse’s actions based on an enumerated list in NCGS 50.7 (including adultery). Unlike an absolute divorce, divorce from bed and board does not require a separation period and does not legally end the marriage.
Secondly, adultery can influence child custody. No, the court will not grant sole custody based on adultery alone. Child custody and visitation is determined by the best interest of the child. Some courts will use evidence of cheating in making their decision. Let me be clear, adultery will not terminate a parent’s right to custody, but among other factors, it could help a judge decide on a custody schedule.
Third, alimony. This is where evidence of adultery is most important. If a cheating spouse is requesting alimony, that request must be denied. On the other hand, if the supporting spouse is cheating, the court must award alimony to the dependent spouse. If both spouses have committed adultery, the court can award alimony to the dependent spouse. Evidence of adultery will also play into the judge’s decision regarding the amount and duration of alimony.
Lastly, there are other civil actions, related to cheating, that can be brought by a spouse. These claims are criminal conversation and alienation of affection. Both actions allow a spouse to sue the cheating spouse’s paramour. However, only criminal conversation requires sexual intercourse. Alienation of affection can be used for any loss of affection in your marriage, even if there is not a sexual relationship.Learn More