Can I Pursue Legal Action Against My Spouse's Lover?

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.

• Criminal Conversation: North Carolina is somewhat unique in recognizing “criminal conversation” as a basis for a lawsuit[1].  The term “criminal” can be confusing as it is actually a civil lawsuit, but essentially, the basis for this suit exists when two people are married and one of the spouses has sexual intercourse with a third person outside of the marriage.  In that circumstance, the spouse who did not have the affair can sue the third party for damages that they have experiences as a result of the third party’s actions.  This requires proving that:
  • A marriage existed between the plaintiff and his or her spouse; and
  • The third party named in the lawsuit engaged in sexual intercourse with the plaintiff’s spouse during the course of the marriage.

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.

• Alienation of Affection: Alienation of affection is a claim that is similar to criminal conversation, but different in that alienation of affection actually requires that the marriage itself ends as a result of the affect that the third party’s actions on the spouse who leaves the marriage, and does not require that actual sexual intercourse take place. It is a broader cause of action that focuses on whether or not the third party intentionally interfered with and attempted to destroy an otherwise happy marriage. Unlike a claim for criminal conversation, an alienation of affection claim can even be brought against an individual who has no love interest in the spouse – for example, an in-law or a friend who dislikes one spouse and is trying to undermine the marriage by encouraging divorce.  To establish a claim for alienation of affection, a plaintiff must prove:
  • That a happy marriage with love and affection existed between the spouses; and
  • That the love and affection which existed at the time of the defendant’s actions was destroyed as a result of those actions.

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.

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