Alienation Of Affection & Criminal Conversation
Alienation of Affections & Criminal Conversation lawsuits are allowed in North Carolina to preserve the sanctity of marriage and the institution of the family. It is estimated that over 200 alienation of affection cases are filed in North Carolina each year.
Alienation of Affection
Alienation of affection is a lawsuit generally brought by a deserted spouse against a boyfriend or girlfriend alleged to be responsible for the failure of the marriage. It is a common law claim which means there is no state statute that specifically authorizes the claim. However, the lawsuit could also be brought against another third party (e.g., mother-in-law, or same sex lover). Most states do not recognize the claim although it is still recognized in North Carolina along with Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah. To win a case of alienation of affection, you must prove that:
- Plaintiff and spouse were happily married and a genuine love and affection existed between them;
- The existing love and affection was alienated; and
- The malicious conduct of defendant was a cause of the loss and alienation of such love and affection.
An alienation claim may be difficult to prove but it does not require proof of extramarital sex. It is not necessary to show that the defendant set out to intentionally destroy the marital relationship, but only that he or she engaged in acts which would foreseeable impact the marriage.
A defendant has a defense against an alienation claim if he or she can show that they did not know that the spouse of the Plaintiff was in fact married. Prior marital problems between the Plaintiff and his or her spouse (the non-innocent spouse) may establish a defense if the evidence shows that the married couple was not genuinely in love prior to the relationship between defendant and non-innocent spouse. The Defendant may also be able to defend the claim on the grounds that he or she did not actively or aggressively pursue the non-innocent spouse and/or that their conduct was inadvertent such that it was not intentional or malicious.
Evidence that shows that the Plaintiff and his or her spouse were happily married before the non-innocent spouse met the defendant such as photos, videos, cards, letters, and testimony of the parties, friends, neighbors and other witnesses. Evidence of adultery with the Defendant is helpful but not required. Evidence of malice on the part of the defendant such that the defendant knew of the Plaintif’s marriage to the non-innocent spouse, lack of caution, evil intent, emails, writings, cards, receipts, etc.
The date of separation is very important in alienation of affection cases. You must prove that the conduct complained of occured before the date of separation. However, conduct that occured after the date of separation may be relevant to corroborate the conduct that occured before date of separation and if the married couple is attempting to reconcile and the conduct post date of separation destroyed efforts toward reconciliation that may be the basis of an alienation of affections claim in and of itself.
The defendant’s interference with marriage can result in huge money judgments for the Plaintiff. Compensatory damages can be awarded for loss of spousal support, loss of services, emotional distress, injury to reputation and loss of sexual relations (consortium). Punitive damages may also be awarded.
Million dollar verdicts have not been uncommon in North Carolina for alienation of affection and emotional distress. Carol Puryear was awarded $30,162,000 dollars in March 2011 in the case of Puryear v. Devin by Wake County judge Carl J. Fox. In 2010, Cynthia Shackelford was awarded $9 million against her husband’s mistress for ruining their marriage. And that same year a Pitt County court awarded Dr. Lynn Arcara $5.8 Million against Susan Pecoraro whom she said stole her husband away from her. Pecoraro had been the wife’s closest friend prior to the illicit relationship with the husband. A Mecklenburg County jury awarded $1.4 million in May 2001 to former Davidson College wrestling coach Thomas Oddo against Dr. Jeffrey Presser of West Palm Beach, Fla., after the coach’s wife, Debra, left him for Presser (the jury verdict was later reduced by the NC Court of Appeals as excessive). A year 2000 verdict of $86,250 for alienation of affections and $15,000 for criminal conversation in the case of Pharr v. Beck, from Burke county was upheld on appeal. In 1997, in the case of Hutelmyer v. Cox, the Plaintiff wife was awarded $1 million against her husband’s secretary who “dressed sexy at work” and had an affair with him destroying their marriage. In May 1991, in the case of Nunn v. Allen, a Richmond county jury awarded $100,000 in damages.
These are a sampling of some of the cases that have been reported in the news and at the appellate courts. Of course there are also an untold number of cases that reach out of court settlements or that are dismissed.
Criminal conversation is a claim brought in civil court against a paramour for having sex with the Plaintiff’s spouse. It is based on the belief that a married person has a right to exclusive sexual intercourse with their spouse. You don’t have to prove that husband and wife were genuinely in love, so it is a claim that is much easier to prove. In fact, you only have to prove (1) an act of sexual intercourse and (2) that the Plaintiff was married to the adulterous spouse. And you don’t have to have direct proof that sex actually occured but rather you merely have to have circumstantial evidence that proves sex occured (usually that there was an inclination on the part of the defendant to have sex with the adulterous spouse and that the defendant and the adulterous spouse had the opportunity to have sex). Therefore, a criminal conversation lawsuit is easier to win than an alienation of affections claim although the two claims are often brought together.
Criminal conversation is like a “strict liability tort” in that few defenses exist. An absolute defense now based upon the new statute is to prove that the sex occured after the date the parties were separated. A separation agreement that contains a “third party” waiver may also be used as a defense. Another defense would be that the Plaintiff gave his or her consent to the sexual relationship (known as connivance). Defenses do not include:
- Lack of knowledge that the adulterous spouse was married
- The marriage was an unhappy marriage
- The sex was consensual
- The defendant was seduced
- The Plaintiff had engaged in adulterous affairs (although that may reduce the damages)
- The sex had no effect on the marriage
A criminal action can potentially be brought for adultery in North Carolina under N.C. Gen. Stat. §14-184, a class 2 misdemeanor. In general, a single sex act is insufficient because the proof required for the crime requires habitual intercourse in a lewd and lascivious manner.
In February 2004, shortly after starting her job as a dispatcher for the Pender County, N.C., Sheriff’s Office, Debora Hobbs was advised by her employer that because she was living with her unmarried male partner in violation of North Carolina General Statute §14-184, she would be required to marry her partner, move out of the house they shared together, or leave her job. She sued claiming the statute is unconstitutional and won in the Pender County case of Hobbs v. Smith but Attorney General Roy Cooper did not appeal.