What is Alienation of Affections? Alienation of affections is a tort comprised of wrongful acts, which deprive a married person of the affections of his or her spouse. To be successful on a claim for alienation of affections, the plaintiff must prove (1) that the spouses were happily married and genuine love and affection existed between them, (2) the love and affection was alienated and destroyed, and (3) the defendant caused the destruction of that marital love and affection. Ridenhour v. Miller, 225 N.C. 543, 35 S.E.2d 611 (1945). The theory behind alienation of affections evolved from a husband’s common-law right to recover from someone who intentionally ‘enticed’ his wife to leave the marital home, with the result being that he lost his wife’s society and services. Currently, an action for alienation of affections is available to either a husband or wife and concerns a wrongful act that deprives a married person of the affection, love, society, companionship, and comfort of the spouse. The North Carolina Supreme Court has described alienation of affections as “a fundamental common law right.” Bishop v. Glazener, 245 N.C. 592, 595, 96 S.E.2d 870, 873 (1957). A similar claim that frequently is made with alienation of affections is criminal conversation. Criminal conversation is an action that arises when someone has sexual intercourse with your spouse. The elements of criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff’s spouse during the marriage. The tort of criminal conversation is based on violation of “the fundamental right to exclusive sexual intercourse between spouses.” Scott v. Kiker, N.C. App. 458, 297 S.E.2d 142 (1982). Although the North Carolina Court of Appeals briefly abolished alienation of affections and criminal conversation in Cannon v. Miller, that lasted only two months and twenty-three days when the North Carolina Supreme Court overturned that ruling and held that alienation of affections and criminal conversation were constitutional. Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984). See also Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). Subsequently, the North Carolina Court of Appeals has refused on several occasions invitations to abrogate criminal conversation a second time. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002) (defendant argued criminal conversation was “archaic, antiquated, and offensive to the concept of feminine equality” and asked the court to abolish it; Court of Appeals has no authority to overrule decisions of North Carolina Supreme Court); Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999) (defendant argued Supreme Court’s refusal to abolish criminal conversation should be reconsidered, but while defendant’s arguments were “skillfully presented,” it was not for Court of Appeals to overrule or ignore clearly written decisions of Supreme Court). It is well settled case law that the torts of alienation of affections and criminal conversation are constitutional according to the North Carolina Supreme Court. If you need to speak with an experienced family law attorney in Huntersville, NC regarding alienation of affections or criminal conversation, click here to contact Adkins Law, PLLC. Adkins Law is located in Huntersville, NC and can help you discuss and evaluate any claim or issue involving alienation of affections and criminal conversation.
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Criminal Conversation and Alienation of Affection Lawsuits
For those contemplating an affair, or who suspect that their spouse might be, it is important to realize that North Carolina law not only lists adultery as a criminal offense, but also has civil causes of action which can be brought against those who engage in affairs. These lawsuits are called “criminal conversation” or “alienation of affection” actions, and allow one spouse to sue for damages based on allegations of emotional harm caused to the marital relationship by a third party. These suits are usually brought by one spouse against the lover of the other spouse who had an affair, and in North Carolina, juries have awarded millions of dollars as a result of these lawsuits.
Understandably, it can often be difficult to prove that sexual intercourse actually occurred. As a result, in many of these situations, circumstantial evidence is accepted as proof. This essentially means proving that the spouse being charged with adultery had the opportunity and desire to engage in it. One example of this might consist of proving that the spouse being charged and the third party booked a hotel room and spent several hours there together alone without the other spouse’s knowledge. Though it is not actual proof that intercourse occurred, circumstantially, it might be considered sufficient.
It is important to take the possibility of such lawsuits seriously. Though they can be complex and require meeting a certain burden of proof, if successful, it is not unheard of for plaintiffs to receive jury awards in the amount of hundreds of thousands of dollars. If you are contemplating an affair, or believe that your spouse might be, this is certainly important information to know and to keep in mind. If you are considering cheating on your spouse, the possibility of your spouse bringing one of these lawsuits should the affair be discovered should give you pause. If a relationship is meant to be, it ultimately will be – but waiting for the proper timing is best. Rushing into something that could not only have significant financial consequences, but that could also be used against you in a custody or alimony determination is simply not the best course of action. On the other side of the coin, if you believe that your spouse had, or continues to have an affair, consulting with an attorney as to whether a lawsuit for criminal conversation might be an option in your circumstances a is wise decision. It is certainly understandable to be hurt and angry if you feel that you have been betrayed by someone you love and who you believed loved you. Depending on the circumstances, however, it may not be worth the time, effort, and emotional expenditure that filing a lawsuit of this nature might require. In many cases, defendants in these lawsuits are ultimately unable to pay the significant damages assessed against them – they simply don’t have the financial means. In those situations, a spouse who feels hurt will have to decide if obtaining a judgement that will have little or no financial benefit is ultimately worth it. Consulting with an attorney can be very helpful in making that decision, and is always advised. If you need to speak with a family law attorney to learn more about separation, divorce, alienation of affection, and criminal conversation, please contact Adkins Law to arrange a consultation. [1] Only six other states – Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah also have laws allowing a spouse to sue for damages on the basis of emotional harm caused by a third party to the marriage. Happy Valentine's Day from Adkins Law! Call us today to schedule your consult!
Imagine this—your spouse is in the shower and you notice they’re getting a lot of text messages. You flip over the phone, and see their inbox is full of explicit texts and pictures going back and forth between your spouse and a coworker. You’ve had your suspicion of infidelity, but now you have proof! What do you do next?
Before you do anything else, you should contact Adkins Law and set up a consult about your situation. In North Carolina, marital misconduct is a big deal. It can be used as the basis for a fault-based divorce, in determining alimony, and in so called heart balm torts like criminal conversation or alienation of affection suits. Unfortunately, those incriminating texts may not be enough to prove infidelity on their own. “But what do you mean this isn’t enough?!”, you’re surely asking. This is a frustrating side effect of new technology coming into the courts. While these text messages may be very explicit and constitute cheating in your mind, absent proof that there was inclination and opportunity to have actual, physical sexual conduct, it simply is not enough. This is not the end, however. These text messages may be very helpful in bolstering your claim of infidelity. For example, if you know that your spouse and their coworker went on a “work trip” together and shared a room, you can likely make the case that they had both inclination and opportunity to engage in a sexual relationship, and those text messages only make it more likely that they did. Text messages may also detail an encounter that occurred between the parties that can be used to show that a sexual relationship is ongoing or to show that third party driving a wedge into the marriage. Remember, text messages, emails, phone records and the like can all be used as supporting evidence, but it is important that they are collected correctly and authenticated to be used in court. If you are interested in pursuing a divorce based on infidelity or have any questions about how to correctly preserve those text messages, contact Adkins Law today to set up a consult. If you are in need of assistance with an Alienation of Affection or Criminal Conversations case give Adkins Law a call so we can schedule a consultation and figure out the next steps for your case.
In North Carolina, if your spouse cheats on you, you may bring a lawsuit against the paramour for alienation of affection or criminal conversation. This means you may sue the person that slept with your spouse or alienated your relationship. Take a look at this video for more information on heart balm torts in North Carolina.
Infidelity is one of the leading causes of divorce. In most cases, when a spouse cheats the damage has been done and the relationship cannot be healed. Before you consider divorce, however, especially if there are children involved, I highly recommend that you make an attempt at marriage counseling. Marriage counseling may or may not work, but at least you made an attempt at preserving the relationship. From a legal perspective, infidelity may have a big impact on a divorce. Primarily this comes into play when determining alimony. In North Carolina, alimony may be awarded when there is a dependent / supporting relationship. This basically means that one spouse is dependent on the other spouse’s income to maintain a certain standard of living. If there is a dependent / supporting relationship and the dependent spouse has cheated, the dependent spouse is barred from alimony. If, however, the supporting spouse has cheated, the dependent spouse is virtually guaranteed alimony. Infidelity also comes into play if an injured spouse is considering a heart balm action. In North Carolina, heart balm actions are designed to protect the sanctity of marriage and the family unit. An injured spouse may bring a lawsuit against the third party that either alienated their relationship with their spouse, or had sexual relations with their spouse. In other words, if a spouse cheats, the injured spouse may sue the person who had sex with the spouse. There are several limitations to these types of suits, however, including the fact that the actions must have occurred before the separation. If you believe your spouse has cheated on you and you are considering divorce or legal action, please contact Adkins Law to speak to a divorce attorney. Adkins Law is located in Huntersville and primarily serves Mecklenburg County and the Lake Norman area. |
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