Alienation of Affections and Criminal Conversation

Synopsis:  This article explains that alienation of affection and criminal conversation are actions a wronged spouse can take against the person with whom the other spouse consorted.  For alienation of affection you have to prove that there was genuine love and affection between you and your spouse and that another person came in and alienated the love and affection from you.  For criminal conversation, you need to prove that another person had sexual intercourse with your spouse during your marriage but before your separation:

North Carolina is one of a few remaining states to allow a spouse to file claims against a third party whom they believe has interfered with their marriage. The claims for alienation of affections and criminal conversation are both “torts,” meaning a legal claim where one party has, by and through his actions, caused injury to another individual. In both claims, it is the actions of the “third-party” that causes the injury. This article will explain what is needed to bring these claims.

I SEPARATION OF THE SPOUSES

In 2009, the North Carolina Legislature decided that alienation of affections and criminal conversation are only actionable if the events giving rise to the conduct occurred prior to the separation of the spouses.  Once the spouses separate and one of the spouses intends for the separation to be permanent, the spouses are free to date without fear of repercussions for their dating partners.  However, if the relationship between the third party and the spouse predated the separation of the spouses, the third party may still have liability for these torts. 

It is still the better practice for spouses to execute a waiver that releases all third parties and states that neither spouse will sue a third party for alienation of affections or criminal conversation.

II ALIENATION OF AFFECTIONS

Elements:

  1. A marriage with genuine love and affection between Plaintiff and spouse.
  2. That the love and affection of the spouse was alienated.
  3. That the wrongful and malicious acts of Defendant were a proximate cause of the alienation of the affections.

Example: Jessica is married to Steve. Steve meets Meredith, and they begin an intimate relationship (though not necessarily a sexual relationship). Meredith is aware that Steve is married to Jessica, but continues to pursue her relationship with Steve. Steve begins to grow distant from Jessica and tells her that he no longer wants to be married to her. If Meredith was a proximate (primary) cause of Steve’s loss of feeling for Jessica, Jessica may be entitled to file a claim against Meredith for alienating Steve’s affections. If Jessica files an action against Meredith for alienation of affections, Jessica would be the Plaintiff, and Meredith would be the Defendant. (Although in this example it is the Wife who brings an action against the third party, the tort would also be available to a Husband, whose wife’s affections had been alienated, allowing him to bring the action against the third party who alienated the affections of his wife.)

At court, Jessica must show that she and Steve were married at the time of Meredith’s interference, and that she and Steve had genuine love and affection for each other in order to satisfy the first element of this tort. Although it is often difficult to prove emotions such as love and affection, tangible expressions of the love and affection such as greeting cards, gifts, notes, and letters from Steve to Jessica may show this love and affection. Also, Jessica could testify as to other loving gestures from Steve such as cooking a special meal for her and their level of intimacy. In addition, Jessica may ask witnesses to testify about what they have observed regarding Jessica and Steve’s relationship and how loving they were toward one another and how Steve began to grow distant following his involvement with Meredith.

For the second element, Jessica must show that the love and affection that was present between herself and Steve has been diminished and/or destroyed. Again, Jessica’s testimony, and that of any witnesses will be valuable in establishing that Steve’s affection and love toward Jessica has been diminished and/or destroyed. Likewise, outward manifestations of the loss of affection, such as if Jessica and Steve are no longer living together, will help prove this element of the claim.

Lastly, Jessica must show that Meredith’s willful and malicious actions were a reason for the loss of Steve’s affection. Jessica does not have to show that Meredith’s actions were the only reason for the loss of love and affection, but that Meredith’s interference with the marriage was a reason that Steve’s love and affection toward Jessica was diminished and/or destroyed. Malice has been defined as acts constituting unjustifiable conduct causing the injury complained of. Evidence of such malice includes the fact that Defendant knew of the marriage between the parties, and acted intentionally in a way likely to affect the marriage.

If the above elements are proved at trial, and the Plaintiff suffered loss as a result of the Defendant’s actions (loss of consortium, loss of income, loss of health, etc.) then the judge or jury is allowed to consider what damages to award. Most alienation of affections and criminal conversation claims are jury trials due to the potential amount of damages involved; however, some are settled at mediation or heard by a judge.

It is also possible to file a claim against a third party who has interfered with the marriage, but has not been in a romantic relationship with the spouse. Although these cases are rare, if a parent, grandparent, friend, or other third party attempts to alienate one spouse from the other, or to keep one spouse from returning to the marriage, it is possible to file an alienation of affections claim against the third party. The nature of the relationship between the third party and the spouse plays a large part in whether the claim will be successful and to what extent the conduct of the third party was unjustifiable. For example, it is natural for a parent to counsel his or her child about the child’s marriage. Therefore, if a parent has acted in a normal way toward his or her child, and counseled the child to leave the marriage, it is unlikely that a claim brought by the spouse for alienation of affections against the parent would be successful.  An action cannot however, be brought against a corporation alleging, for example, that the company encouraged or created a situation giving rise to a relationship between and married spouse and his co-worker.

As of the date of this writing, there is no case law regarding the tort of Alienation of Affections which involves a same sex couple.  However, in law, there should be no reason why an action for alienation of affection would not apply to same sex couples.

III CRIMINAL CONVERSATION

Elements:

  1. A lawful marriage.
  2. That Defendant had intercourse with Plaintiff’s spouse in North Carolina during that marriage.

The tort of Criminal Conversation only requires that spouses be married, and that at some point during their marriage, the Defendant had sexual intercourse with Plaintiff’s spouse in the state of North Carolina. It is not necessary to show that genuine love and affection existed between the spouses.

Example: James and Elaine are married. Elaine meets Travis and they have sexual intercourse. James has a claim against Travis for criminal conversation. If James files an action against Travis, James would be the Plaintiff, and Travis would be the Defendant. (Although for purposes of this example it is the Husband who brings an action against a third party, the tort would also be available to a Wife whose husband had sexual relations with a third party, allowing her to bring the action against the third party who had sexual relations with her husband.)

Same Sex Marriages

As of the date of this writing, there is no case law regarding the tort of Criminal Conversation which involves a same sex couple.  It is unsettled whether the tort of Criminal Conversation would apply to same sex couples as the legal definition of “intercourse” is specific and requires both a man and a woman. This tort comes into North Carolina law from English common law.  As such, the elements of the offense are specifically delineated and are usually not expanded. The current state of the law is such that these actions are disfavored and it is quite likely that the court would not expand and extend this action to same sex couples.

IV DAMAGES

With both claims, there are two separate types of damages for which you may recover: compensatory damages, which are designed to “make you whole” and compensate you for your losses resulting from the Defendant’s actions; and punitive damages, which act as a punishment for the Defendant in the action, penalizing them for their egregious acts. Punitive damages, if awarded, are limited to either three times the amount of the compensatory damages awarded, or $250,000.00, whichever amount is the greater of the two.

Compensatory Damages

Compensatory damages are intended to compensate the injured person; these damages include money for the loss of the monetary support provided by his or her spouse, loss of consortium, and other legally protected marital interests lost by him or her through the defendant’s wrong. Consortium has been defined as the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection, and aid of the other in every conjugal relation.

In addition the Plaintiff may also recover for the wrong and injury done to his or her physical health, mental and emotional health, or reputation. This would include any loss of income the Plaintiff has suffered, any medical treatments (including any screenings for sexually transmitted diseases) that the Plaintiff required as a result of the Defendant’s actions, as well as counseling sessions and medications for depression, anxiety or other mental health issues arising from the injury to the Plaintiff. The Plaintiff will need to provide proof of these damages to the trier of fact in the form of receipts, tax records, and other written documentation that proves the amount of damages. If the trier of fact has awarded compensatory damages, and if it finds that there are additional aggravating factors, punitive damages may also be awarded.

Punitive Damages

In order to recover punitive damages, the Plaintiff must show that there were aggravating factors. In an alienation of affections claim, there must be malice above and beyond the level of malice required to obtain compensatory damages. Such aggravating factors include conduct by the Defendant that is willful, wanton, aggravated or malicious. In past cases, the courts have held that the Defendant flaunting his or her relationship with the Plaintiff’s spouse in front of the Plaintiff was an aggravating factor, as has been the Defendant calling the Plaintiff’s home to discover the whereabouts of the Plaintiff’s spouse.

In a criminal conversation claim, the same sexual misconduct necessary to establish the tort of Criminal Conversation may also sustain an award of punitive damages. However, the evidence must show reckless conduct in order to justify punitive damages. Therefore, as with alienation of affections, some additional egregiousness must be shown.

If the Plaintiff is entitled to punitive damages, the trier of fact is then allowed to consider the amount of these damages, and must consider the following factors:

  • The reprehensibility of the defendant’s motives and conduct.
  • The likelihood, at the relevant time, of serious harm.
  • The degree of the defendant’s awareness of the probable consequences of his/her conduct.
  • The duration of the defendant’s conduct.
  • The actual damages suffered by the claimant.
  • Any concealment by the defendant of the facts or consequences of his/her conduct.
  • The existence and frequency of any similar past conduct by the defendant.
  • Whether the defendant profited from the conduct.
  • The defendant’s ability to pay punitive damages, as evidenced by his/her revenues or net worth.

Only One Recovery of Damages Allowed

The areas of recovery for both claims are so similar that in a situation where the Plaintiff has claims for both alienation of affections and criminal conversation against the same Defendant, the trial court will only allow damages for one claim or the other—whichever claim has produced the greater of the two damage awards. This is due to the fact that generally the same factual situation gives rise to both torts and the same types of damages, such as compensation for loss of consortium and pain and suffering, may be recovered in both claims. For example, if the Plaintiff introduced evidence that his or her therapy bills were $7,000.00 in the alienation of affections case and introduced this same evidence in the criminal conversation case, it would be unjust to allow the Plaintiff to recover $14,000.00 (once for each claim) when the Plaintiff had truly incurred only $7,000.00 in therapy expenses. Therefore, although both claims may be heard in court, only one award of damages—the greater of the two awards—will be taxed against the Defendant.

CAVEAT

This article is only an overview of the torts of Alienation of Affections and Criminal Conversation. It is not intended to be a substitute for advice from a licensed attorney. Please have an attorney review your case to determine the appropriate action to be taken.