J. Gregory Hatcher | Divorce Attorney
North Carolina is one of the few remaining states which recognize the actions of alienation of affection and criminal conversation.
Alienation of affection is a claim brought by one married person against a third party for allegedly alienating the affections of that person’s spouse through some form of relationship or control. This claim dates back to the Common Law of the United States and the state of North Carolina. In some cases, husbands would bring alienation of affection claims against their mothers-in-law for meddling in the marriage. More commonly, a husband or wife whose spouse has had an affair brings such a claim against the third party paramour. The claim arises from an idea that husbands and wives have a property right in their spouse as well as a right to not have their marriage interfered with by third parties.
Criminal conversation, on the other hand, is an often misunderstood claim whereby a spouse sues a third party for having sexual relations with his or her spouse. Knowledge by the third party that the person is married before having sex with that person is not required.
These claims have come under fire in recent years as being antiquated and contrary to Constitutional rights to freely associate with others. Many critics say that they are simply used as leverage tools by separating husbands and wives to bring about an outcome that they desire.
The criticism against these claims has been addressed by our Court of Appeals and our Supreme Court in North Carolina. Although the Court of Appeals struck down these claims, the Supreme Court reminded the Court of Appeals that only our Legislature can change law. With its ruling, the North Carolina Supreme Court squarely established that the claims of alienation of affection or criminal conversation are still valid until further notice from our Legislature in Raleigh.
Although many critics attack these claims, there is something to be said for the prohibitive effect they can have on the actions of third parties. If a third party has no fear that his or her actions to become involved with a married person will bring about a legal cause of action, there may be no disincentive in the philandering behavior. Further, husbands and wives do have a right to believe that their marriage will be sacred and left from the interference of third parties.
While it is true that these claims are often threatened for leverage sake and never pursued, I’ve advised on a number of cases where it was clear that the third party had no regard for the rights of the other spouse or the sanctity of marriage. In one instance, a third party nurse was having an affair with the physician for whom she worked. She freely admitted that she wanted the life of a doctor’s wife and did not care to what extremes she had to go to obtain it. When the physician left his wife, she did have claims for property distribution, custody, child support and alimony. However, it seemed patently unfair that the person who brought about, at least in part, the failure of her marriage had no ramifications. For his part, the husband was subject to alimony claims. But what about the nurse?
Finally, the misconception by many critics of these claims is that there was no set of checks or balances to make sure these claims do not run amuck in our courts. Alienation of affections and criminal conversation claims are rare in the first place. Secondly, our jury system almost always provides a safety valve on runaway litigation. So in the case of the third party who simply meets a married woman, who is not wearing her wedding ring, at a bar one night and then has a one night stand, a jury can hear these facts and rightly determine what, if any, damages are due to the husband who brought the claim of criminal conversation. Overall, these claims can be powerful and bring about justice where otherwise none can be served.
Greg Hatcher is a divorce lawyer in Charlotte, NC. He has been practicing in the area of family law for more than 20 years.