North Carolina is one of a handful of states that continues to recognize the tort claims of Alienation of Affections and Criminal Conversation, also known as the “heart balm” torts. There has been much conversation in the popular press concerning the elimination of these claims. However, the North Carolina Supreme Court has upheld these claims and they remain valid claims under our law. We have successfully defended claims of this type for many years and, under the appropriate circumstances and based upon the specific facts of the case, we will consider prosecution of the claims.
Claims for both alienation of affections and criminal conversation are generally prosecuted in the Superior Court Division and may be determined by a jury. Most of the large verdicts which have been published resulted from cases where the defendant was either not in court or presented no defense. As with the majority of civil lawsuits filed in North Carolina, many of these cases are settled before actually getting to trial.
To establish an alienation of affection claim, a plaintiff must prove by the greater weight of the evidence, that he or she had a genuine marital relationship with his or her spouse. The relationship need not be perfect, but there must be some love and affection. Next, a plaintiff must prove that the defendant took an intentional action to damage that marital relationship, which may or may not include sexual relations with the plaintiff’s spouse. Finally, a plaintiff must prove that the defendant’s intentional action actually damaged the genuine marital relationship that the plaintiff had with his or her spouse.
Criminal conversation is a rather imaginative name given to the act of sexual intercourse with the plaintiff’s spouse while the plaintiff is married and living with his or her spouse. Consent of the participating spouse is no defense to a claim for criminal conversation.
These two claims are typically, though not always, brought together and both claims must typically be brought within three years of the date the plaintiff knew, or should have known, of the defendant’s tortious actions. Damages can be awarded for both claims of alienation of affection and criminal conversation, including loss of love and affection in a marriage, and medical expenses resulting from treatment following discovery of a third party’s involvement in a marriage (including, but not limited to, sexually transmitted disease testing and psychological/psychiatric treatment). In the proper case where sexual relations with the defendant prior to separation is proven, a plaintiff may also recover punitive damages subject to the limitations on punitive damages under North Carolina law. No act following physical separation of the spouses, where one of the spouses intends the separation to be permanent, can form the basis of either a claim for criminal conversation or alienation of affection.
The stakes are often high in these marital tort cases and skilled counsel makes a difference. We are available for consultation concerning either of these claims.
Robert Ponton began our Family Law practice group in 1980. He and Heidi Bloom are fellows in the American Academy of Matrimonial Lawyers, a national organization composed of the leading family law attorneys throughout the United States. We have unique experience in the valuation of businesses and professional practices.