If your spouse has an affair with a third party, you may have a civil claim for alienation of affections and/or criminal conversation against that third party. These are two separate claims, but they are intertwined and often part of the same complaint. These claims are unique, as they are only available in a small handful of states. Luckily (or, perhaps, unluckily) for you, North Carolina is one of those states.
Criminal Conversation arises when a third party has sexual intercourse with your spouse. This claim arises from the outdated notion that a man owns his wife, but the claim is now available to both men and women. If you can prove that a third party had sex with your spouse, you will succeed in this claim even if that person had no knowledge of your marriage. There are certain defenses to criminal conversation, but lack of knowledge about the marriage is not one of them.
You may be wondering: how do I prove that two people had sex when I was not there? This has been a common issue, and North Carolina courts have developed a test for proving adultery, requiring evidence of “inclination” and “opportunity.” You do not need direct evidence of the sexual intercourse. This means that the spouse trying to prove criminal conversation only needs to prove that the two individuals involved in the affair were (1) inclined to have sexual intercourse and (2) had an opportunity to have sexual intercourse. So, if you can prove they had a history of flirting, communicating excessively, or engaging in other intimate behavior and they were together somewhere where they had the time and privacy in which to have sexual intercourse, you can prove criminal conversation.
Alienation of Affections
Alienation of Affections arises when a third party purposefully interferes with your marriage and causes the destruction of an otherwise happy marriage. This claim usually arises after an affair destroys a marriage, which is why it is so often intertwined with criminal conversation. However, this claim can technically arise against any interfering third party, and people in North Carolina have been successful against mothers-in-law, friends, and other individuals who convinced their spouse to end the marriage or interfered in such a way that the marriage was essentially ruined. It is often more difficult to prove Alienation of Affections than it is to prove Criminal Conversation, as there are more elements for the Plaintiff to prove, which means there are more ways for a Defendant to attack the Plaintiff’s allegations. The most common defense to Alienation of Affections is that the marriage was not a happy one with genuine love and affection before the Defendant’s interference.
Both of these claims are considered “transient torts,” which means that the actions you are complaining of must have happened in a state that recognizes these torts. So, if your spouse travels to a state that does not recognize the claims and has sex with a third party, you will most likely not succeed in a claim against that third party. North Carolina case law has addressed many different situations involving other states, so a North Carolina family law attorney can help you analyze your situation to help determine whether you have a potential claim or defense. If you have been sued for Alienation of Affections or Criminal Conversation, you should hire a North Carolina attorney immediately.