In Divorce and Family Law cases we are frequently asked if someone is allowed to sue the person who slept with their spouse. The answer in North Carolina, at least as it sits today in 2019, is yes you can. There are two possible causes of action that you can bring against someone who has had a physical or romantic relationship with your wife or husband. Those claims are Alienation of Affection and Criminal Conversation.
Alienation of Affection
Alienation of Affection has several distinct elements that you must prove in order to win your case. They are:
- You had a marriage that contained true love and affection.
- The love and affection were destroyed by the acts of the Defendant.
- The destruction of love and affection has caused you damage.
While sex or physical conduct with your spouse by the defendant is not required to win a claim for alienation of affection, those acts can help prove that the love in your marriage was destroyed. Other possible methods of proof can be any act that most people would consider “cheating”. Things like consistent texting, phone calls, going on dates, hand-holding, kissing, note writing, explicit conversations or writings, or anything else that show’s affection can be used as proof for this claim.
Criminal Conversation is a much easier claim to prove than Alienation of Affection because damages are automatically assumed if the acts occurred. The elements for Criminal Conversation in North Carolina are:
- That you were legally married to your spouse and had not been separated at the time the acts occurred.
- That the Defendant had sexual intercourse with your spouse.
Another important thing to note about Criminal Conversation is that you don’t actually have to catch the Defendant in the act of having sex with your spouse, and you don’t need them to admit to doing so. All you need is “inclination and opportunity”. In other words, if you can show they were alone together in a private place, and that they had some sort of romantic inclination towards one another, then sex is presumed to have occurred.
If you win an Alienation of Affection or Criminal Conversation case in North Carolina, against a person who slept with your wife or husband, then the next step is to determine the monetary damages that should be awarded to you. The jury, or judge in some cases, will be able to consider many factors when deciding on what figure you should receive. Some of these factors include:
- The length of the marriage.
- The extent of the affair or relationship.
- The income disparity between you and your spouse (if the marriage ended in divorce after these actions).
- Therapy bills or any other medical expenses that you incurred.
- Attorney’s fees for the divorce from your spouse.
- The ages of everyone involved.
- Any loss of property or other things lost during the divorce from your spouse.
- Any emotional pain and suffering you endured.
There are a variety of different defenses to Alienation of Affection or Criminal Conversation. Most of the defenses to Alienation of Affection involve poking holes in the marriage and showing to the jury that true love and affection didn’t exist. These can be things such as prior acts of cheating, going to marital counseling prior to these acts occurring, domestic violence, or by showing any other problems in the marriage. Defenses to Criminal Conversation mainly focus on trying to mitigate damages or denying that any physical contact happened.
What Should You Do if You Think Alienation of Affection or Criminal Conversation Has Happened to You?
From a legal perspective, you should avoid letting your spouse know that you are aware of the affair or sexual encounter until you can locate proof of the relationship. There usually isn’t a rush to file these cases as the statute of limitations for them lasts for three years, so take your time. Proof is typically found by hiring a private investigator, taking pictures of their activities, reviewing their communications with a person you suspect they might be in a relationship with, reviewing their phone bill, or by talking to their friends or coworkers. You should be cautious when reviewing their electronic information as in some states it could be a crime to access electronic information you do not have the authority to access.
In short, you should have everything in place to prove what happened, and possibly to proceed with your divorce, before letting your spouse or the other party know. The most critical step is to discuss your situation with an attorney who can help guide you through the case and take you through the process. If you believe you have a case for Alienation of Affection or Criminal Conversation click here to set up a consultation with our office in Charlotte, NC.
P.S. If you need more information about Alienation of Affection or Criminal Conversation check out this article.