In Defense Alienation of Affection and Criminal Conversation Claims
Marriages have changed and so has divorce. A dependent spouse need no longer prove fault in order to receive alimony. Fault is no longer required for an absolute divorce. The law applies the best interests of the child test rather than the tender years doctrine. The law focuses more on finances and less on who is right and who is wrong. The examples of modernization in family law are nearly endless. North Carolina family law is no exception-except in one major area.
North Carolina is one of a handful of states that still recognizes alienation of affection and criminal conversation.
In a nutshell, alienation of affection takes place when a third party engages in conduct that he or she should know would impact an intact marriage negatively and in fact "alienates" one spouse's love and affection from the other. A simple example is having an affair with someone's spouse. If it is a sexual affair, criminal conversation has also taken place. "Criminal conversation" is a broader tort claim: it happens when someone has sexual intercourse with another's spouse, knowingly or not. There is no intent requirement.
In 2009 the state legislature modified but never seriously considered abolishing these claims. It did not seriously curtail these cases; it primarily clarified that plaintiffs could only bring cases against individuals and not employers. This perhaps disappointed critics of these causes of action who regard them as antiquated regulations of private moral behavior. Some argue that adultery is usually a symptom rather than a disease. On some level, I agree with that; people in happy marriages generally do not have affairs. Many argue that criminal conversation suits are brought out of anger-and litigants bring them simply because they can.
The rarity of true alienation of affection establishes the value of keeping it as a cause of action. If a person takes action that breaks up a truly intact marriage, then it truly is egregious and people are harmed. In fact, they are devastated. Just as with a car accident victim, courts of law should remain open and provide a way for people to be made whole. Similarly, if it's not devastating because the marriage was not that great, damages will be lower. Furthermore, if there was no love left in the marriage, there was no alienation of affection. Economics drives attorneys who generally keep the less serious cases out of court because they are not valuable.
Criminal conversation is a strict liability tort and is subject to the criticisms that all strict liability torts face-namely that there is no intent requirement and intentional acts are what should be punished so that they may be more effectively deterred (This begs the question that maybe there should be some deterrent to people having with sex with a person not knowing his or her marital status). Again, this aspect is controlled by damages. Less culpable people are less likely to be hit with punitive damages. Economics takes over and lawyers will not bring cases that aren't worth more (because the behavior is less morally objectionable). I suspect this may be why most criminal conversation claims are brought along with an alienation of affection claim and its requisite intent element.
Alienation of affection and criminal conversation remain means by which morality maintains a role in divorce law as financial concerns have come to dominate the field. Ironically, financial concerns constrain minor cases brought in the name of moral outrage while these claims provide for the genuine recourse to those seriously harmed by immoral behavior.
Personally, I'm glad that North Carolina has kept these torts. I know many disagree.
North Carolina is one of a handful of states that still recognizes alienation of affection and criminal conversation.
In a nutshell, alienation of affection takes place when a third party engages in conduct that he or she should know would impact an intact marriage negatively and in fact "alienates" one spouse's love and affection from the other. A simple example is having an affair with someone's spouse. If it is a sexual affair, criminal conversation has also taken place. "Criminal conversation" is a broader tort claim: it happens when someone has sexual intercourse with another's spouse, knowingly or not. There is no intent requirement.
In 2009 the state legislature modified but never seriously considered abolishing these claims. It did not seriously curtail these cases; it primarily clarified that plaintiffs could only bring cases against individuals and not employers. This perhaps disappointed critics of these causes of action who regard them as antiquated regulations of private moral behavior. Some argue that adultery is usually a symptom rather than a disease. On some level, I agree with that; people in happy marriages generally do not have affairs. Many argue that criminal conversation suits are brought out of anger-and litigants bring them simply because they can.
The rarity of true alienation of affection establishes the value of keeping it as a cause of action. If a person takes action that breaks up a truly intact marriage, then it truly is egregious and people are harmed. In fact, they are devastated. Just as with a car accident victim, courts of law should remain open and provide a way for people to be made whole. Similarly, if it's not devastating because the marriage was not that great, damages will be lower. Furthermore, if there was no love left in the marriage, there was no alienation of affection. Economics drives attorneys who generally keep the less serious cases out of court because they are not valuable.
Criminal conversation is a strict liability tort and is subject to the criticisms that all strict liability torts face-namely that there is no intent requirement and intentional acts are what should be punished so that they may be more effectively deterred (This begs the question that maybe there should be some deterrent to people having with sex with a person not knowing his or her marital status). Again, this aspect is controlled by damages. Less culpable people are less likely to be hit with punitive damages. Economics takes over and lawyers will not bring cases that aren't worth more (because the behavior is less morally objectionable). I suspect this may be why most criminal conversation claims are brought along with an alienation of affection claim and its requisite intent element.
Alienation of affection and criminal conversation remain means by which morality maintains a role in divorce law as financial concerns have come to dominate the field. Ironically, financial concerns constrain minor cases brought in the name of moral outrage while these claims provide for the genuine recourse to those seriously harmed by immoral behavior.
Personally, I'm glad that North Carolina has kept these torts. I know many disagree.
posted by Running With Plants at
7:00 PM
5 Comments:
Do you not think this in effect excuses the cheating spouse, by inplying the the blame (or a part of it) lies elsewhere? It smacks of justification for the type of erring spouse who claims "It wasn't my fault, I couldn't help it, S/He threw him/herself at me"
You cannot, after all, *make* someone fall in love with you, nor can you *make* them sleep with you.
Whatever happened to self-control and expecting someone who has chosen to enter into a marriage take responsibility for their own behaviour, and for keeping the promises which they have made? After all, the erring spouse could have prevented any harm by simply refusing the advances of the 3rd party.
If S/he lacks self-control or is sufficiently discontented in his/her marriage or does not take his/her marriage vows very seriously, to the extent that they cheat, it sems to me that that is their responsibility, not anyone elses.
You say "If a person takes action that breaks up a truly intact marriage.." Surely if the marriage is truly intact, the actions of a third party trying to establish a relationship with one of the spouses would be doomed to failure.
I don't condone anyone having an affair but to impose a legal liability on the 3rd party in this situation and, in particular, the idea of it being criminal, strikes me as wrong.
But for the married person's infidelity, no harm would (or could) have been caused. On a purely practical level, how is a 3rd party supposed to judge whether there was ,or was not, 'love left in the marriage'? (or even whether sexual fidelity was the fundemenatl basis of that specifc marraige?)
The 3rd party is not a party to the marriage, did not, in effect, agree to any contract about the terms of the spouses realtionship, and therefore even if looked at in business terms, should not be liable if the marriage breaks down.
It seems to me that rather than keeping morality in the legal process, it dilutes it by (a) seeking to set a financial value on a marraige (b) giving cheating spouses ammunition to deny or minimise their own responsibility (c) risking harming a third party whose only fault has been to trust their partner (how many cheating spouses tell their new partner that the marriage has been over for years, but that they stay for the sake of the kids, for instance?)
I don't quite see why a 3rd party, who is not a party to the marriage-contract should be liable for someone else's choice to breach that contract. It is on a par (to take your car-accident example) to saying that if you are injured in a car-crash you should be allowed to sue the passenger of the offending driver for damages.
Apologies for such a long comment, but it is an interesting subject.
I live in Washington State. And I'm curious about this "alienation of affection" tort law. I went through a very high conflict divorce. My ex-wife was having an affair with her physician/boss/ now husband.
Durring that time he took an active roll in alienating my children from me with devestating consequences.
He and the ex-wife made unilateral medical decisions regarding my children that I was not allowed to know of or participate in. I had court ordered joint decision making authority regarding all medical care. They refused to inform me of any medical decisions, diagnosis, tests or treatments performed on my children; to many to list here.
The kicker is that there was NO follow up or follow through by either the physician or my ex-wife. He just kept on diagnosing and prescribing. Several mental health experts were involved throughout the divorce. Everyone of them commented on the inapropriate conduct of the physician and recommended that he be removed as the children's physician.
It took a court order to do so. I have one treatment note from the physican where he wrote for a heavy psycotropic med for my daughter and stated "my name" doesn't know. The physican and the ex-wife are now married.
Would this situation fall within a tort law in Washington State?
I don't know the answer to your question, but I am very sorry you are going through this! Hang in there. You're not alone & it will get better!
I live in North Carolina and I over the past 10 months have been intimately involved with a woman from South Carolina. I was under the understanding that the woman was separated. However I found out she was not. Her husband found out about the relationship and has threatened to sue me for Alienation of Affection. I know that there are Alienation of Affection laws in NC but there are none in SC. Since he and his wife are residents in SC and I am a resident in NC will he be able to bring a case against me for Alienation of Affection?
I live in North Carolina and I over the past 10 months have been intimately involved with a woman from South Carolina. I was under the understanding that the woman was separated. However I found out she was not. Her husband found out about the relationship and has threatened to sue me for Alienation of Affection. I know that there are Alienation of Affection laws in NC but there are none in SC. Since he and his wife are residents in SC and I am a resident in NC will he be able to bring a case against me for Alienation of Affection?
The good news is that South Carolina doe not have such torts (AoA or CC) on it's books. If it were reversed and she lived in NC and you in SC then you'd be protected as well.
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