What Is Alienation of Affection?

By Jim Warren

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North Carolina is one of a very few states that allow litigation of matters regarding alienation of affection and criminal conversation, the so called “heart balm” lawsuit.  These causes of action are meant to address the interference in the marriage by a third party.

A claim for alienation of affection requires that the plaintiff present evidence that:  (1) there was a marriage with love and affection existing between the husband and the wife; (2) that love and affection was alienated; and (3) the malicious acts of the defendant produced the loss of that love and affection.  With respect to the first element, an aggrieved party need not prove that he or she as the case may be and his or her spouse had a marriage free from discord, only that some affection existed between them.  In terms of proving that alienation of affection occurred, one need only show that his or her spouse’s affection for him or her was diminished or destroyed.  The third element requires a showing of both malice and proximate cause.  Malice is shown by evidence that the defendant/third party knew of the marriage and acted intentionally in a way likely to affect the marriage.  Proximate cause does not require that defendant’s acts be the sole cause of the alienation, so long as they were the controlling or affective cause.

There is a statute of limitations applicable to these lawsuits.  The statute of limitations is three years from the separation of the parties or when one first found out about the conduct on the part of the third party alienating affections of the spouse, whichever comes first.   In other words, if a spouse learns that someone is communicating with their spouse in a manner that may be alienating their affections as set forth above, then they have three years from when they found out if that occurred prior to the separation.  If they learn about it after the separation, the three years runs from the date of separation even though the person found out about it later.  A statute of limitations simply means that a lawsuit must be filed or the action resolved to the satisfaction of the moving party before the statute of limitations runs or you are forever barred from pursuing the claim.

Criminal conversation is adultery.  The cause of action is based on the violation of the fundamental right to exclusive sexual intercourse between spouses.  The elements of the tort or wrong are the actual marriage between the spouses and sexual intercourse between a third party and one spouse during the marriage and prior to separation.  The same statute of limitations applies to criminal conversation.

Laws surrounding these issues and marriage in general can be complex and nuanced.  That’s why you need strong counsel, people who work with you strategically and offer you the robust representation you deserve.  Contact Warren Family Law to get started.