Julie was cooking dinner and her husband Tom was in the shower. Tom, who usually carries his cell phone with him everywhere he goes, had left his cell phone on the kitchen counter. Tom’s cell phone dinged and Julie glanced at the phone to see a text message pop up from Tom’s coworker, Kelly. The message read: “I miss you. I can’t wait until we can be together all the time. XO.” Julie began reading the stream of text messages to and from Kelly and suddenly found herself immersed in the salacious details of her husband’s affair. Julie felt emotionally numb and knew that, from that point on, her world would never be the same.
North Carolina is one of a handful of states in the United States that still recognizes the legal claims of “alienation of affection” and “criminal conversation.” Most states have abolished such claims. Alienation of affection allows a spouse to sue a third-party for alienating the affection of the other spouse. Most often the third-party is a lover. However, anyone who wrongfully and maliciously interferes in a marriage and alienates the affection of a spouse could potentially be sued for alienation of affection, including a parent, friend, or a stepchild.
When a lawsuit for alienation of affection is filed against a spouse’s lover, it will most likely include an additional claim for “criminal conversation.” A claim for criminal conversation arises when a third-party engages in sexual intercourse with another person’s spouse. Thus, if your spouse has an affair or begins a new romantic relationship before you are separated, you may have legal grounds to sue the third-party for alienation of affection and/or criminal conversation.
Alienation of affection and criminal conversation are civil tort claims that can entitle an aggrieved spouse to recover monetary damages from the third-party. The aggrieved spouse’s lawsuit must allege specific damages, such as emotional distress, loss of income, and/or loss of consortium (conjugal relations). Most cases for alienation of affection and/or criminal conversation, if not settled at mediation, are tried before a jury.
Even though you may have a legal basis to sue a third-party for alienation of affection and/or criminal conversation, there are pros and cons to filing a lawsuit to pursue these claims. Some factors that your attorney may take into consideration in advising you whether or not to pursue such claims may include the following:
Are you mentally and emotionally equipped to have the personal details of your life made public? Lawsuits are public records. By suing someone for alienation of affection and/or criminal conversation, you are opening the door for that person to delve into the intimate details of your life. Your marriage will essentially be put on trial and subjected to scrutiny.
Can a jury (or judge) be convinced that love and affection existed between you and your spouse before the third-party interfered? If you and your spouse were in an unhappy marriage and contemplating separation prior to your spouse becoming involved with a third party, you may have difficulty establishing that integral part of the claim for alienation of affection.
Is there sufficient evidence of adultery (or inclination and opportunity to have committed adultery) between your spouse and the third-party? Even if your spouse and the third-party have been very careful, there is usually some evidence to support such conduct if it has occurred. Cell phone records, text messages, emails, social media, and financial records, such as credit card statements can be helpful in establishing the location and togetherness of your spouse and the third-party.
Do you have the time and financial resources to pursue a lawsuit involving these claims? Litigation is time-consuming and expensive. The cost of depositions, private investigators, forensic experts, and other litigation costs can be exorbitant. Additionally, you may be required to miss work to attend depositions and court events.
What do you hope to accomplish by pursuing a lawsuit for alienation of affection and/or criminal conversation? Prevailing on claims for alienation of affection and/or criminal conversation may entitle you to monetary awards. If a jury finds in your favor and awards you substantial monies in damages from the third-party, the verdict may be worthless if the third-party has no income or assets from which to pay. A monetary judgment against a third-party who is “judgment proof” is much like a Pyrrhic victory – you will have spent a lot of time and money and the damage to your marriage will still be done.
Some people who file a lawsuit for alienation of affection and/or criminal conversation may do so in the hopes of putting pressure on their spouse to give them a more favorable settlement in their divorce related matters. However, your divorce proceedings are separate from any proceedings involving a lawsuit for alienation of affection and/or criminal conversation. If your spouse is no longer involved with the third-party, filing a lawsuit against the third-party is not going to enhance your bargaining position for a better divorce settlement.
Marriages are complicated, and the facts and circumstances of each case are unique. Your attorney is in the best position to view your situation objectively and give you advice on whether or not you should proceed with a lawsuit for alienation of affection and/or criminal conversation.
Daphne Edwards represents clients who are pursuing claims for alienation of affection and criminal conversation. Ms. Edwards also represents clients who are in need of an attorney to defend such claims. If you are considering pursuing a claim for alienation of affection for criminal conversation, you should be aware that a three-year statute of limitations applies to both alienation of affection and criminal conversation, and time may be of the essence in filing your lawsuit to preserve your claims. Likewise, if a lawsuit has been filed against you, there are some valid defenses that can be raised and, it is crucial to your defense that you file a timely response.