Alienation of Affection & Criminal Conversation (Interspousal Torts)

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What is an Interspousal Tort?

A tort is a wrongful act that causes harm to someone, and it is dealt with through litigation in civil court. Interspousal tort immunity has been abolished in North Carolina, so husbands and wives may sue one another, as if they were single, for all tort actions, including wrongful death. This is true even if the accident or event giving rise to the cause of action occurred in a state that has not abrogated spousal tort immunity. Spouses may bring actions in tort after separation for conduct that occurred during the marriage. There are two types of Heart-Balm Actions:  Alienation of Affections and Criminal Conversation.

When does North Carolina not recognize an Interspousal Tort?

Since most states have abolished these torts, they raise interesting interstate questions. North Carolina looks to the law of the state where the contract occurred to determine whether an action will lie. If the conduct occurred in a state that does not recognize the tort, the law of North Carolina will not recognize the action. On the other hand, if the conduct occurred in North Carolina but the defendant is a nonresident, then North Carolina may not have personal jurisdiction.

What is Alienation of Affections?

Alienation of Affections is a tort action brought against any third party for wrongful acts that deprived the plaintiff of the love and affection of his spouse. Note that adultery is not an element of this cause of action. The action may be, and in North Carolina frequently has been, brought against in-laws, for example. But there is no cause of action by, or on behalf of, children.

To recover for alienation of affections, a plaintiff must show:

  1. Genuine Love and Affection: the plaintiff must show that the plaintiff and his spouse were happily married with “genuine” love and affection between them. But note: Do not take this literally; evidence of “some” love and affection between the plaintiff and his spouse and some casual connection between the defendant’s acts and the diminution of that love and affection has been held sufficient.
  2. Love and Affection Destroyed: the plaintiff must also show that the love and affection between the plaintiff and his spouse were alienated and destroyed.
  3. Wrongful and Malicious Acts of Defendant Caused Loss: the plaintiff must show that the loss of love and affection was caused by the “wrongful and malicious” acts of the defendant. These wrongful acts must occur prior to the parties’ separation.
  4. Malice: in this context means “conduct injurious to another,” and not necessarily conduct that was “spiteful, malignant, or revengeful.” Note that malice is usually implied from the fact that the defendant’s acts were harmful. Proof of adultery definitely establishes the malice element of this tort. The defendant does not have to initiate the wrongful conduct. Being a willing participant suffices.

There are virtually no defenses to alienation of affection except a total absence of love and affection and the running of the statute of limitations. The action may not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

Punitive damages are available for alienation of affections if there is proof of “aggravating” circumstances. For example, making a public display of the affair, welcoming the plaintiffs spouse into the defendant’s home, and calling the plaintiff s spouse at the marital home may suffice. Proof of sexual intercourse may also suffice for punitive damages.

What is Criminal Conversation?

To recover for criminal conversation, the plaintiff must show that there was a marriage between the spouses and evidence of voluntary sexual relations between the defendant and the plaintiff’s spouse during the course of the marriage, i.e., adultery.

Post-separation adultery will not give rise to a cause of action for criminal conversation. The standard test for circumstantial proof of adultery in North Carolina requires proof of inclination and opportunity. Note: If the finding of adultery is based only on evidence of opportunity (e.g., the defendant and a woman are seen entering the same motel twice and the same apartment once), the finding cannot stand. There must be a meaningful showing of inclination. Husbands and wives are competent to testify directly as to the adultery of the other. The law requires evidence of malice to support an award of punitive damages for criminal conversation, but proof of sexual intercourse sometimes suffices to show malice.

The plaintiff’s consent to the adultery between the defendant and his spouse will constitute a defense. The fact that the plaintiff must also have been unfaithful is irrelevant.

The statute of limitations for criminal conversation is three years, running not more than three years from the last (pre-separation) act of the defendant giving rise to the cause of action.

Actions Under Wiretap Acts

North Carolina’s Electronic Surveillance Act prohibits the recording of a person’s private conversations without the consent of at least one party to the conversation. The Act applies to the nonconsensual recording of one spouse by the other, even within the family home. The Act creates a civil cause of action for persons whose communications are intercepted or used in violation of these provisions. A spouse whose oral communications are intercepted by the other spouse may recover damages from the other spouse unless the other party to the conversation had consented.

Ordinarily, the recording spouse may “consent” to the interception of a conversation only if that spouse is actually participating in the conversation. However, if the conversation involves the minor child of the recording spouse, the law recognizes the vicarious consent of the recording spouse on behalf of the minor child if the recording spouse/parent has a good faith belief that the recording is necessary in the best interests of the child.