You’ve just found out your spouse cheated on you while you were married. What’s your next step? While most states have done away with this common law tort, North Carolina is one of the few states that still recognizes alienation of affection and other heart balm actions. Alienation of Affection allows a spouse to sue a third party, often referred to as a paramour, for wrongful acts that deprived them of the love and affection of their spouse.
Suing a Third Party for Alienation of Affection in North Carolina
In order to prevail successfully on a claim for alienation of affection, you must be able to prove the following:
1. You and your spouse were happily married with genuine love and affection existing between the parties;
2. The love and affection shared between you and your spouse was destroyed and alienated;
3. The wrongful and malicious behavior of the paramour was the cause of the destruction and alienation of your spouse’s love and affection; (the malicious element is always presumed if there is actual proof of sexual intercourse between your spouse and the paramour)
4. And wrongful and malicious behavior occurred prior to the separation of you and your spouse; and
5. The alienation damaged you (for example: lead to the dissolution of your marriage, suffered from depression, suffered economic loss, etc)
You don’t have to prove you and your spouse had the perfect, blissful marriage, only that there was some love and affection between you and your spouse. You can always use personal items, such as cards, letters, notes, home videos, and other documentation that would help to show that a genuine love and affection was present at some time during the marriage. While there are many reasons a marriage might fall apart, it is important to remember that alienation of affection is reserved for those instances where you and your spouse would still be together, had it not been for the interference of the paramour.
Defenses for an Alienation of Affection Suit in North Carolina
There are several defenses a defendant can assert to an alienation of affection. Some of these defenses including claiming that there was no love and affection in existence between the parties, that they were unaware that the person was married, or that the claim is barred by the statute of limitations (discussed below).
Another defense exists if you consented to the seduction and affair. It seems like an odd concept, to consent to your spouse’s affair, but it does happen. If you encourage and consent to your spouse’s affair, in an attempt to use evidence of an affair to their advantage in subsequent divorce proceedings, that would be a defense. Likewise, if you might be having a secret affair and encourage your spouse to engage in an affair, that situation the defendant can use your consent as a defense. There is a defense called “connivance,” which means if you trick your spouse into having an affair, the person they subsequently had the affair with, can raise this as a defense if you end up suing them.
Another common defense is that you and your spouse were already separated prior to the alienation. If you and your spouse have executed a separation agreement, or the defendant can otherwise prove that you were separated, with the intent to remain separated, any sexual acts between the paramour and your spouse, does not count. The law says (a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent. This means that the act, the cheating, must occur prior to the separation of the parties
Before you file suit for alienation of affection, you should consider the following:
1. The statute of limitations for this claim is three years. Time begins to run from the time the injury took place, meaning the date of the cheating. However, if it is an ongoing affair, the three-year window does not begin to run until the actual act, or affair, is complete. Another important piece of information to remember is that the statute of limitations begins to run at the time of the cheating, not when you become aware of the cheating. For example, if your spouse cheated on you six years ago, and you just found yesterday, the three year statute of limitations has already expired to bring a claim for alienation of affection. The exception to that example would be if your spouse’s affair six years is ongoing, and still ongoing when you become aware.
2. Your private affairs will become public record. With a few exceptions, every court case filed is public record. Often times these cases involve confidential, personal information. Remember, once a lawsuit is commenced, the opposing party has equal opportunity to respond with their own information. Sometimes, the threat of an alienation of affection lawsuit can be used as leverage due to the sensitive and personal nature, meaning the cheating spouse may not want their “dirty laundry” in public records.
It’s important to weigh out the benefits and risks of filing this type of lawsuit before proceeding. Often, during times of high stress such as a divorce, it’s best to seek outside, neutral counsel. An experienced Charlotte family law attorney can walk you through your options, present the facts and potential outcomes, and help you best understand how your life will be impacted.
Considering filing for alienation of affection, filing a separation agreement, or proceeding with divorce? Contact our team today.