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
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