The Potential Price Of Cheating (p.36)

By Jaime Humphries Davis

When a spouse learns that her husband or his wife is involved with another person and is committing adultery, the impact is devastating. When the adulterous spouse leaves the family, the devastation is intensified. The feelings of rejection, anger, grief, and humiliation, as well as possible loss of financial support; illness, such as depression; and other factors are considered a personal injury in North Carolina, whose public policy is against the interference of a third party in a marriage.

North Carolina allows compensation in appropriate cases where third party interference has effectively destroyed the marriage. These lawsuits involve claims for alienation of affection and criminal conversation.

Alienation of affection is a cause of action that allows a spouse to sue the paramour of his or her spouse and potentially recover money damages. In order to be successful in an action for alienation of affection, the innocent spouse must prove that: a marriage existed between the plaintiff and his/or her spouse; the marriage entailed love and affection between the spouses; the love and affection was destroyed; the defendant's malicious conduct contributed to or caused the loss of affection; and the plaintiff suffered injury and damages.

Actions for alienation of affection are generally brought by the innocent spouse against the paramour of the guilty spouse and do not require proof of adultery. In fact, telephone calls and emails may be sufficient to subject a non-resident to the jurisdiction of the North Carolina courts for purposes of a suit for alienation of affection.

The usual defense to a claim of alienation of affection is that the love and affection in the marriage had been lost prior to the adulterous spouse's involvement with the third party. This involves attacking the plaintiff's claim of a happy marriage existing until the interference of the third party.

Unlike alienation of affection, a cause of action for criminal conversation does require proof of adultery between the defendant and the plaintiff's spouse. In order to succeed on a claim for criminal conversation, the plaintiff must prove: the existence of a valid marriage between the plaintiff and the adulterous spouse; an act of sexual intercourse between the plaintiff's spouse and the defendant; and the defendant suffered injury and was damaged.

In North Carolina, the statute of limitations for both alienation of affection and criminal conversation is three years. The statute begins to run from the last act of the defendant giving rise to the cause of action. In addition, the acts of the defendant giving rise to an action for alienation of affection or criminal conversation must occur before the plaintiff and his or her spouse physically separate with the intent that the separation be permanent.

The possibility of realizing a sizeable damage award in North Carolina based upon causes of action for alienation of affection and/or criminal conversation remains. The potential size of a favorable verdict varies depending on multiple factors including length of the marriage, the egregiousness of the defendant's conduct and the length of time over which it has occurred, the conduct of the plaintiff during the marriage, and actual damages such as medical or psychological treatment costs and loss of income, in addition to humiliation and emotional harm among others. Not every case of alienation of affection or adultery will merit bringing a claim. When deciding whether to file a lawsuit, it is important to consider not only the underlying facts of the case, but also whether the potential defendant has sufficient assets from which to collect a judgment if the lawsuit is successful. In many cases, it is simply not cost-effective to files these claims, as the potential defendants are judgment proof.

Jaime Humphries Davis is a board certified family law specialist and partner with the family law firm of Gailor, Wallis & Hunt, PLLC. She can be reached at 919-832-8488, Jdavis@gwhlaw.com, or visit www.gailorwallishunt.com.