Alienation of affection & criminal conversation

With the revelations of John Edwards’ affair with Rielle Hunter and the birth of their child, North Carolina’s infidelity laws are national news. North Carolina is one of about eight states that continue to allow lawsuits, known as heart-balm torts, to protect the sanctity of marriage.

North Carolina allows a spouse to bring a lawsuit against the paramour for both alienation of affections and criminal conversation. Alienation of affections occurs when a paramour alienates the genuine love and affection that existed between husband and wife. With criminal conversation, however, you don’t have to prove that husband and wife were genuinely in love. You merely have to prove that one spouse had sex with a paramour. Therefore, a criminal conversation lawsuit is easier to win.

An adulterous affair in North Carolina can cost you! Under these legal actions, Plaintiff’s are racking up big jury verdicts. In 1997, a jury handed down a $1.2 million verdict against a female paramour in Forsyth County. Another wife won $1 million in Alamance County and a husband won $243,000 in Wake County. In 2001, a Mecklenburg County jury awarded a former Davidson wrestling coach $1.4 million. In 2006, $350,000 was awarded in a criminal conversation case. Some of these jury awards have been reduced on appeal and some have not been collectible. Nonetheless, the nuisance value of these suits leads many people to settle to avoid the associated legal fees which can range into the tens of thousands.

Supporters of such laws say they uphold the sanctity of marriage and deter extramarital affairs by creating a financial penalty for those who interfere and disrupt marriage. Critics say the laws are outdated and are inconsistent with a modern era that should not consider one spouse to be the property of the other.

The Legislature did limit criminal conversation torts in a new law effective 1 October 29. Prior to enactment, you could sue for criminal conversation even if the sex occurred after separation. Now, you must prove the illicit relationship happened before a legal separation.

About 200 of these actions are filed in North Carolina annually but most are dismissed (presumably settled out of court).

To protect yourself you should find out if the person is married before you have sex with them (some case law suggests that lack of knowledge is not a defense). If you are considering a relationship with a married person, make sure they are separated from their spouse before you start a relationship. It is best that married persons obtain a separation contract agreeing to live separate and apart before dating.

Alienation of Affections and Criminal Conversation actions are against the third party. In addition, the jilted spouse can obtain alimony from the cheating spouse if they are the financially dependent spouse in family court.

A criminal action can potentially be brought for adultery in North Carolina under N.C. Gen. Stat. §14-184, a class 2 misdemeanor. However, North Carolina’s criminal adultery statute is probably unconstitutional. 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 brought suit against Sheriff Carson Smith in 2006 and the Superior Court of Pender County declared the statute unconstitutional based on the United States Supreme Court’s decision in Lawrence v. Texas which struck down a Texas sodomy law. Because Attorney General Roy Cooper did not appeal, the decision is restricted to Pender County.