Hunt Law Group, P.C.

Posted By admin on May 18, 2009

The North Carolina House of Representatives passed House Bill 1110 on May 14, 2009 – a piece of legislation colorfully entitled An Act to Clarify Procedures in Civil Action for Alienation of Affection and Criminal Conversation. The Bill will now move to the Senate for consideration.

North Carolina is one of the few states that still has the traditional “heart balm” actions on the books – criminal conversation and alienation of affections. Criminal conversation is a tort action for damages by a spouse against a third party who has engaged in sexual relations with the Plaintiff’s spouse. To recover for criminal conversation, the plaintiff must merely show:

1) that there is a marriage between the spouses;

2) evidence of voluntary sexual relations between the defendant and the plaintiff’s spouse during the course of the marriage – ie, adultery. The NC Court of Appeals determined in Johnson v. Pierce (148 N.C. App. 199 (2001)) that the adultery can occur either pre- or postseperation.

Alienation of affections is a tort action brought against any third party for wrongful acts that deprived plaintiff of the love and affection of their spouse. Adultery, as defined above, is not an element of this particular cause of action. To recover for alienation of affection, the plaintiff must show:

1) That the plaintiff and the spouse were happily married with genuine love and affection between them;

2) That the love and affection between the plaintiff ans spouse were alienated and destroyed;

3) That the loss of love and affection was caused by the wrongful and malicious acts of the defendant. The NC Court of Appeals determined in McCutchen v. McCutchen (360 N.C. 280 (2006)) that a claim for alienation of affection can also occur either pre- or postseperation.

So it doesn’t matter whether the tortious acts took place while the spouses were living together or while they were separated. As long as they are married while the tortious action takes place, there is a potential for legitimate cause of action.

As many know, a marriage in North Carolina may not be dissolved unless the couple has lived separate and apart for a full year – which means that as the law currently stands, a couple who has separated with every intent of divorcing once their year-long waiting period is up may still open themselves and their dates up to tort liability under these heart-balm actions. Many attorneys will write a ‘waiver of liability’ into their standard separation agreements, which will “allow” the separated spouses to date during this separation period – but if that clause is NOT written into your separation agreement, or you don’t have a separation agreement, you may find yourself in hot water from an angry and vindictive spouse.

House Bill 1110 wants to limit the applicability of these torts to acts that occurred before the spouses separated – and will define the statute of limitations on these heart-balm actions as three years from the last act giving rise to the cause of action. This bill would codify what many separating couples already agree to – that once they are separated, they have the right to live separate and apart from each other and date whom they choose. It does not do away with these archaic tort actions, but it does at least limit them to the time period that they are most applicable to – the marriage.

Although this bill has passed through the House, it still has to go through the Senate.  If you’d like to encourage your Senator to pass this bill, be sure to contact them - let your voice be heard!

Categories: Uncategorized
Tags: divorce, family law