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After infidelity, what is an alienation of affection lawsuit?

On Behalf of | Feb 19, 2021 | Family Law

One of the central, binding promises of marriage is fidelity. Infidelity creates costs to both the marriage and to society, as infidelity deprives a married person of their spouse’s affection and trust, and it deprives society of a healthy marriage between two people.

When your spouse is unfaithful, it may be because another person engaged in wrongful acts to tempt the infidelity. When that is the case in North Carolina, you may be able to file a lawsuit against that person. These lawsuits are called “alienation of affection” and “criminal conversation” suits.

North Carolina is among just a few states that allow alienation of affection and criminal conversation lawsuits against third parties who wrongfully act to undermine marriage in this way. The idea is that the wrongful acts have caused an injury, and injuries are generally compensable.

These lawsuits are often called “heart balm” suits. There are two closely related concepts:

  • Alienation of affection means that a third party has wrongfully acted to deprive a married person of their spouse’s affections during your marriage and prior to your separation.
  • Criminal conversation alleges that a third party has had sexual relations with your spouse during your marriage and prior to your separation.

In order to file an alienation of affection or criminal conversation lawsuit, you must have been married and not physically separated at the time of the infidelity. This refers to a pre-divorce period of separation in which at least one spouse intends the separation to become permanent.

Further, you must file your heart balm lawsuit within three years of the third party’s last wrongful act.

In 2017, the North Carolina Court of Appeals was asked whether alienation of affection and criminal conversation lawsuits were unconstitutional, seeing as they penalize what might otherwise be a person’s freedom of speech and expression. The appeals court found that these actions are constitutional because they advance the substantial governmental interest in preserving marriages and because there is a rational basis for the policy. Later that year, the North Carolina Supreme Court declined to rehear the question.

In 2019, a North Carolina man won an alienation of affection lawsuit against his wife’s lover. He was awarded $750,000. His lawyer, however, commented that this was primarily a moral victory and that the man was unlikely to be able to collect on the judgment.

Should I consider a ‘heart balm’ lawsuit?

If someone wrongfully persuaded your spouse’s affections astray or actually had sexual intercourse with your spouse, you may be able to file a heart balm suit. Start by talking to an experienced family law attorney who can assess your claim and explain the pros and cons of filing such a lawsuit, including whether you are likely to be able to collect.