North Carolina is one of the few states that still allows an aggrieved party to bring a civil lawsuit for damages against someone who has had an affair with their spouse that has led to the destruction of the marriage. The action is a “tort” or civil wrong, not a criminal case. The controversial law originated a long time ago and is based on the primary thought that marriage is a sacrosanct institution in our society, and anyone who will harm it by actively luring a spouse away from an otherwise “ok” marriage should be liable in damages for that offense.
Lawsuits for alienation of affection have yielded very high verdicts from juries in the last few years. Our firm gets many inquiries about bringing such suits and it is still common to see them filed or at least threatened in the midst of separation and divorce cases. If two recently-filed bills make it through the state House and Senate, however, these lawsuits would soon be banned.
How do I prove alienation of affection?
As in any lawsuit, the plaintiff must prove their case by the greater weight of the evidence, certain elements. To prove a claim for alienation of affection, the wronged spouse must prove that:
- Prior to the commencement of the affair, they had a loving marriage;
- That the loving marriage was diminished or destroyed by the outsider’s conduct; and
- And that it was that wrongful conduct that led to the diminishment of the marital relationship.
The jilted spouse may seek damages for:
- Emotional distress and mental anguish, shame, humiliation;
- Economic damages, which may include the loss of the cheating spouse’s financial contributions toward the marriage; and
- In certain cases, punitive damages may be available to punish the paramour for their actions.
Meeting these criteria will likely make you eligible for an alienation of affection action. However, it is important to remember that the defendant will also have defenses of their own, the most common of which is that they were unaware your spouse was married, or that there was no existing love or affection in the marriage. This is why you should always have a shrewd and experienced divorce attorney on your side.
Waiting on divorce—possible changes to the 12-month waiting period
In North Carolina, one must be physically separated from their spouse (living at a different physical address) for a period of one year and one day before they can file an action for “absolute” divorce. There is no way around this time requirement, much to the frustration of many of our clients.
Going to another state to get divorced does not work to shortcut the waiting period, as most states require one of the parties to live in that state for a minimum period of time before being eligible to file for divorce in their courts; typically six months.
Separated parties can file actions for child support, child custody, spousal support (alimony) and equitable distribution (property division) immediately after separation, and do not have to wait for the same period of time required for divorce. Those legal actions can still be pending when it is time to file for divorce and will continue even after a divorce is granted, so long as they were filed with a court and served on the other party as required by the applicable rules, before the divorce decree is entered.
Two bills pending in the North Carolina legislature may reduce this waiting period, and eliminate the ability to file a claim for alienation of affection.
Banning alienation of affection and speeding up divorces
Democrats recently filed two bills in the state House and Senate that would abolish North Carolina’s alienation of affection law. As of April 2021, only six states in the country still recognize alienation of affection: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.
Under SB 459 and its companion HB 489, filed in the beginning of April, the alienation of affection law would be abolished, and would also shorten the waiting period for divorce from 12 months to six months.
Regarding alienation of affection cases in North Carolina, State Representative Pricey Harrison, a co-sponsor of House Bill 489, told the Winston-Salem Journal over 200 of these types of cases are filed in our state every year, and feels these laws are simply “outdated.” She added that these actions are “often used to create problems for a defendant, such as attorney’s fees, or to intentionally inflict emotional distress, or as leverage in a divorce or custody proceeding.”
Those opposing elimination alienation of affection claims see the cause of action as an appropriate penalty to hopefully discourage someone from actively trying to lure away someone’s spouse to destroy the marriage.
If the bill is passed, it would not affect any alienation of affection cases pending at the time it becomes law.
As for divorces, for married couples without minor children, the proposed six-month waiting period could be waived completely in cases of uncontested divorce. The Winston-Salem Journal article also noted that the “bills would allow for divorce proceedings to continue even if the couple remains in the same household for financial reasons, or have occasional sex.” The bill stresses “isolated incidents” and not a resumption of marital relations, however.
The article does also note that the chances of the bill passing are small, however, due to a lack of bipartisan support.
The impact of adultery on your North Carolina divorce case
If adultery does lead to the end of your marriage, it can have a significant effect on your divorce proceedings. To get a divorce in North Carolina, you do not need to prove that the other spouse is at fault. There are only two grounds for divorce – separation for one year, or incurable insanity on the part of one spouse with both spouses living apart for three consecutive years.
However, adultery is a legitimate ground for “divorce from bed and board,” which does not technically end the marriage, but is a form of legal separation.
Proven adultery also may entitle the other spouse to receive spousal support. Generally, adultery will not affect the equitable distribution process, unless your spouse has co-mingled or spent marital assets on their affair.
If you are considering divorce or an alienation of affection case, or are being sued for alienation of affection, it is always wise to consult with experienced family law attorneys first. At Hartsoe & Associates, P.C., we provide knowledgeable counsel so you can make informed decisions going forward. We invite you to call us at 336-725-1985, or reach out to us through our contact page to set up a meeting with a seasoned trial attorney. We maintain offices in both Winston-Salem and Greensboro.
For Tony, the law is a calling, not a job. He is a mountain boy, with simple, straightforward values. Tony loves what he does, and loves to help people through some of the toughest moments anyone will ever face. Learn More