Lately, there has been some discussion among North Carolina family law attorneys about the torts of alienation of affections and criminal conversation. Alienation of affections and criminal conversations are two causes of action which can be brought against a third party who interferes with the marriage. Although they are usually brought together, they are actually two separate causes of action with different elements.
Alienation of Affections – The elements for alienation of affections are: (1) A marriage with love and affection, (2) which is destroyed by, (3) the wrongful acts of a third party. So, although the typical AA case involves adultery or marital infidelity, any intervenor can be liable as long as the elements are present.
Criminal Conversation – The elements of criminal conversation are: (1) A marriage, (2) sexual intercourse with a third party. So, unlike AA, the third party can only be liable if there were actually instances of extramarital sexual contact. However, criminal conversation appears to have no requirement that the affair actually destroy the marriage.
North Carolina is one of only a handful of states that still allows a cause of action for adultery. Is this a good thing? That’s the debate. On one hand, these suits allow an innocent spouse to recover against a third party for interfering with his or her marriage. On the other hand, these suits kind of shift the responsibility from the “guilty” spouse to the third party, which may not always be appropriate.
Now, before you run off and sue your cheating spouse’s paramour, make sure you check with your attorney so you know all of your options. In my opinion, alienation of affections and criminal conversations are not appropriate in every case where there has been infidelity. For one thing, the case can be expensive. In order to be successful, you may have to hire a private investigator, which can cost thousands of dollars. In addition, these cases can take significant amounts of the attorney’s time, which will also cost you. So, financially, the suit is only worth it if the third party has sufficient assets to enable you to recover more than you paid. Of course, there’s often more than just the financial implications to consider.