Helping You Understand Alienation Of Affection In Family Law
Alienation of affection in North Carolina is different from what most people think it is. In some other states, many people assume that alienation of affection is akin to parental alienation. In North Carolina, it is a tort that is established to allow recovery for a plaintiff who has had the affections of his spouse alienated by a third party. As of 2016, only six states still recognize the tort. North Carolina is one of them.
The history of the tort comes from something called the heart-balm statute. The reason most states abolished the tort is because they used to consider a wife as property, and they only allowed the man to sue for it originally, because if another man stole his wife, then he stole his property. Therefore, there was a lawsuit. However, most states that kept this law amended it to allow either spouse to sue. After a while, most states just got rid of it altogether.
Experienced Handling Of Alienation Of Affection Cases
Not every law firm handles alienation of affection cases. It is generally considered to be in the family law arena, but not many civil lawyers will work on them, and these cases are rare. Statistically speaking, there are only about 200 such lawsuits actually filed in the state per year. I know that the cases I have worked on, even before a lawsuit was ever filed, ended up in mediation. Many times, you will see people file types of suits if they want to have an advantage on a separation or property settlement agreement. One party can get more in a settlement sometimes in order to keep their reputation clean since a lawsuit filing is a public record.
What is interesting about alienation of affection is that the defendant does not have to necessarily be the paramour. It could be somebody else. It could be an in-law, a third party or a third party who aided the paramour in the alienation. Generally, though, it involves a lawsuit against a third party who has stepped into the marriage and caused alienation to occur.
Anyone Can Be Involved In Alienation Of Affection
It could be anyone. For example, say you have a father-in-law who is constantly verbally abusive to the spouse, telling the wife (his daughter) that the husband is no good and trying to destroy that marital love. In North Carolina, we have to show three different elements to prove alienation. First, the plaintiff has to show that there was a happy marriage and that genuine love and affection existed between the spouses. There is no recipe to prove what a happy marriage is. It can be many things. It doesn’t have to be a perfect marriage. You just have to show that there was some happiness within the marriage.
Secondly, you have to show that the love and affection was alienated or destroyed because of this third person’s interference. Thirdly, you have to show that alienation occurred because of the defendant’s malicious conduct. Malice is presumed if there is any kind of sexual activity, but sexual activity is not necessary for the malice element to occur. It can be shown by other situations, but it is important to note that in October 2009, our legislature passed a law making it possible to only sue an actual person for these issues. In the past, you could also sue corporations if you could drag them in based on this concept, but since 2009, you can only sue individuals. The statute of limitations is something to keep in mind as well, as it is only three years from the cause of action.
Holding The Appropriate Party Responsible
You cannot sue your own spouse in an alienation of affection issue. Generally, you would sue the person who cheated with your spouse. If you have a third party who interceded for the paramour or someone who is alienating the affection, that person may be sued as well under an aiding and abetting premise. Our firm generally handles anywhere from five to 10 serious cases like this a year. I have personally handled these kinds of cases for almost a decade. Most of them do not go to court. Our firm has successfully tried these cases to verdict in front of a jury, but many family law lawyers will not take these cases because they are different. The experience necessary in handling these types of cases is different as well.
Most of the cases usually do settle out of court. We have a mediation process here that is required by law. This is when either the court assigns a mediator or you and the other party chooses a mediator. It is an informal process in which the mediator goes back and forth and you show what you know, but usually that happens after a lawsuit has been filed. This is after formal discovery, such as depositions and interrogatories, has taken place. The mediator comes in, and then you go into settlement talks to see if you can come to an agreement that you both are content with. If that ends successfully, then the lawsuit terminates, a nondisclosure agreement is signed and a check is cut. If there is no agreement, either the case goes to trial or the other side ends up dismissing their case.