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After the Affair: When Affections Have Been Alienated

In August of 2015, 37 million Ashley Madison accounts were hacked and subsequently made public. This website, created for people to engage in extramarital affairs, held personal information on people from all walks of life. The release of this list will likely lead to many divorces, but in the state of North Carolina it may lead to something more.

They are often dubbed heart-balm torts, civil claims which exist to recover damages for luring away a spouse. Although it is considered a sin in most (or all) religions and a societal evil that plagues many marriages, adultery is still alive and well. In some states, however, that action can cost you dearly. North Carolina is one of the few states where heart-balm torts remain legally viable. When a marriage suffers at the hands of another, a jilted spouse can obtain legal justice in the form of filing an alienation of affections claim and/or a criminal conversation claim. These civil suits are often paired with a claim of intentional infliction of emotional distress.

These claims, first recognized in England during the eighteenth century, were initially allowed in America for husbands to bring suit when their wives, who were considered property, had physically left them. In 1866, the ruling of Heermance v. James altered this decision when a husband filed suit after a discovered affair, although his wife had not left the marital home. While he was not deprived of his “property”, the courts recognized the loss of affection and opinion of a spouse, intangible elements of a marriage that were not previously considered. After some time, women were able to file claims against a paramour, leading to a steady stream of lawsuits until the 1930’s, when many state legislatures started to bar these claims. Today, there are only a handful of states where these claims can be filed. . It has been estimated that over 200 of these suits are filed per year in North Carolina alone.

Alienation of affections claims must satisfy three elements: The plaintiff and spouse were happily married and a genuine love and affection existed between them; the existing love and affection was alienated; and the malicious conduct of defendant was a cause of the loss and alienation of such love and affection. This does not mean that a marriage must be perfect prior to the paramour’s intrusion, and even a partial loss of affection is sufficient to proceed with this claim. In addition, this claim requires that the paramour had knowledge of the marriage between the plaintiff and his or her spouse.

The tort of criminal conversation is often filed with an alienation of affections claim. This claim only relies on two elements being satisfied: Actual marriage between plaintiff and his or her spouse; and sexual intercourse between defendant and plaintiff’s spouse. This claim is more difficult to defend, as only circumstantial evidence is needed to determine that it occurred- opportunity is enough. Ignorance of a marriage is not a defense, nor is consent of the plaintiff’s spouse.

These two torts are often filed with claims of intentional infliction of emotional distress. Three elements must be met for this claim: extreme and outrageous conduct by the defendant; which is intended to cause severe emotional distress, or indicates a reckless indifference to the likelihood that such conduct will cause severe emotional distress; and which does cause severe emotional distress to the plaintiff. In order for conduct to be classified as extreme and outrageous, the defendant’s conduct must go beyond all possible bounds of decency, and be regarded as “atrocious and utterly intolerable in a civilized community.” In order for this claim to be proven, the plaintiff must demonstrate their emotional distress is severe by producing evidence of a mental or emotional disorder. Being upset or saddened by someone’s actions is not emotional distress.

These heart-balm torts have resulted in large payouts, from tens of thousands of dollars to even more substantial amounts, like the $30 million win in 2011 by a scorned wife in Wake County, North Carolina. While many of these cases are settled before trial, verdicts can be costly. Last year, there seemed to be a slight turning of tides. In 2014, the West Virginia Supreme Court of Appeals dismissed a criminal conversation claim in Golden v. Kaufman, on the premise that it was an archaic law that needed to be abolished. In the same year in North Carolina, Rothrock v. Cooke made headlines when a Forsyth County judge dismissed a plaintiff’s alienation of affection case on the principle that these claims violate a person’s constitutional rights. While recent rulings show a potential shift in court opinion, the future of these torts is unknown. Whether you were affected by the Ashley Madison list, or somehow discover an affair that leads to the demise of your marriage, alienation of affections and criminal conversation claims remain an option in North Carolina.

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