What is an Alienation of Affection Claim?

Private investigators are often hired to help obtain evidence of an extramarital affair. Victory Investigations specializes in infidelity investigations and has helped thousands of clients prove adultery in North Carolina.

Infidelity is like a wrecking ball to a family—it can tear down even the sturdiest marriages. While some couples weather the storm, many end up calling it quits, diving headfirst into separation and divorce. But it doesn’t stop there—cheating can also land you in hot water legally, with claims like “alienation of affection” and “criminal conversation,” also known as “heart-balm torts.”

What is Alienation of Affection and Criminal Conversation?

Alienation of affection is a legal concept, within family law, that allows a spouse to sue a third party who is believed to have caused the deterioration of the marital relationship. In essence, it refers to the interference of a third party in a marriage, leading to the loss of love, affection, or marital harmony between spouses.

To prove alienation of affection and criminal conversation, the jilted spouse has to show their marriage was all roses before the affair, and that the paramour’s actions caused the downfall. They can demand damages for everything from emotional pain to financial losses. And get this—even without getting physical, the claim still holds water, though it usually involves some steamy texts or secret meetings.

It is important to note that the term “criminal” is merely used as a label, as this tort is a civil action, not a criminal one.

What Type of Proof or Evidence is Needed to Prove an Alienation of Affection Claim?

alienation of affection north carolina criminal conversation
Adultery can lead to alienation of affection lawsuits.

How to prove alienation of affection against a defendant.

In order to assert a claim for alienation of affection, a plaintiff must prove that there was genuine love within the marriage prior to the wrongful act of an extramarital relationship. If genuine love and affection can be proven, then it may be possible to sue for alienation of affection. Ways to demonstrate that a loving and affectionate marriage existed could be pictures of the couple, together and showing affection; love notes and/ or diary entries, trips together, and testimony of friends and family.

If the betrayed spouse can establish that the relationship was indeed a loving one, then they can sue a defendant for emotional distress and alienating their spouse from them and seek punitive damages from the paramour. A family law attorney will file an alienation of affection claim on your behalf, within the statute of limitations.

Can a Private Investigator Prove Adultery and Provide Evidence for an Alienation of Affection Lawsuit?

Usually, evidence of the affair can be demonstrated through video and pictures and/ or explicit communications, such as text messages between the spouse and their lover. Often, a private investigator is hired by an individual that believes their spouse or significant other is . The objective is to document the adultery or infidelity, through surveillance activities, with video or pictures of the spouse and the spouse’s paramour. Ideally, the pictures and video should show affection between the spouse and third party (i.e. kissing, hugging, holding hands, etc.). Another crucial piece of evidence that should be obtained is “opportunity“. This would be the opportunity for the cheating lovers to act out on those affections, behind closed doors. Once the spouse and the paramour are demonstrated to be engaged in a sexual relationship, the plaintiff has a case for adultery in North Carolina.

At this point the jilted spouse and their attorney can file a cause of action for adultery and alienation of affection, as they have evidence that the loving marriage was destroyed, through the act of having the affair. The third party, through his or her actions is believed to have deprive the plaintiff of the affections of their spouse.  

Cheating Spouse and Their Lover… Considerations for Liability

A family law attorney in your area may advise not to pursue the defendant for several reasons, but one of the main reasons is that it can be expensive to pursue. It may also be that the defendant does not have the wherewithal to pay compensatory damages as a result of an alienation of affection case. Another consideration may be that the cheating spouse may make extraordinary claims that the marriage was far from perfect and begin angling to defend his or her lover. This can demonstrate that the marriage was perfect in only the plaintiff’s eyes. Which brings us to the defenses of this criminal conversation claim.  

What are Typical Defenses to an Alienation of Affection Lawsuit?

So, you have the evidence of explicit text messages and extensive telephone calls between the spouse and the third party. You have video and pictures of the couple’s love for one another used as evidence. And you know that you had a loving bond with your spouse before the sexual relations began with the third party, BUT all of a sudden your spouse claims otherwise. This is usually due to them coming to the defense of the third party. You may hear objections coming from the other side that the defendant may claim to have had no idea that your spouse was married. Your spouse may even state that they hid their marriage from the third party and they, indeed, did not know of the relationship prior to the civil claim.

Your cheating spouse may state that, although you have been living under the same roof, that you’ve in essence have been living separate and apart by sleeping in separate bedrooms. We’ve also seen where the unfaithful spouse has claimed deprivation of sex from their husband or wife. Economic adultery and controlling claims have also been asserted in defense of a tort of alienation of affection. 

What States Recognize Alienation of Affection?

six states recognize alienation of affection - north carolina
North Carolina recognizes Alienation of Affection.

Can I sue for Alienation of Affection and Criminal Conversation?

There are six states that recognize alienation of affection:  Hawaii, North Carolina, Mississippi, New Mexico, Utah, and South Dakota.

In nearly every adultery case that is headed towards divorce, our clients want to pursue a lawsuit against the third party under North Carolina’s alienation of affection laws. It is a common law that is discussed between clients and their attorneys. Obviously, the harmed party must somehow provide evidence of the affair and must prove the following in order to have a legal claim: The loving marriage has suffered due to the actions of the cheating spouse and third party. The marriage began to suffer when and because of the illicit affair and cause harm to the faithful spouse. The mental anguish precludes the forgiveness and possible reparation of the marital relationship. As a result and due to the alienation of spouse’s affections, the faithful married spouse may be entitled to damages

We are NOT attorneys and this article should NOT be considered legal advice. If you are in need of legal advice, reach out to an attorney OR call us so that we may refer you to one.

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