Your marriage comes to an end due to your spouse’s infidelity. You are aware of and are pursuing your claims for support against your unfaithful spouse. Is there legal recourse that you, as the “innocent spouse,” have against the paramour/ third party of the extramarital affair?

As of the present, the answer is “yes.” North Carolina recognizes the torts of  “alienation of affections” (AA) and “criminal conversation” (CC) as viable claims that can be asserted against the paramour. Referred to as the “heart balm statutes,” AA and CC are civil claims that the innocent spouse (plaintiff) can bring against the paramour (defendant) seeking money damages due to the interference with and damage to the marital relationship by the defendant.

The claim of AA is predicated on the defendant’s maliciously interfering with and destroying the love, affection and marital relationship that existed between the spouses. The marriage need not be perfect; however, there must have been genuine love and affections existing between the spouses, and the malicious acts and conduct of the defendant must have proximately caused the injury. Malice is implied if there had been sexual relations between the defendant and the other spouse.

Under CC, the claim arises from the commission of sexual relations between the other spouse and defendant and the resultant violation of the plaintiff’s expectation of exclusivity of sexual relations between the spouses.

If the plaintiff prevails on their AA and CC claims, they are entitled to an award of compensatory damages from the defendant, which may include considerations for loss of support, loss of consortium, embarrassment, humiliation, mental pain and suffering and violation of other marital rights resulting from the defendant’s tortious acts. Where the conduct of the defendant is particularly heinous and aggravated, the plaintiff may be entitled to punitive as well as compensatory damages.

AA and CC lawsuits are customarily tried before a jury. Awards in these cases have ranged wildly, from zero to several millions of dollars. However, being awarded damages is far and away different from being able to collect damages. Plaintiff cannot recover their legal fees and expenses from the defendant in these cases. To pursue AA and CC in court, the plaintiff must be willing to advance payments of fees and expenses with the knowledge that they may not obtain a judgment against the defendant, or the defendant is judgment proof.

At some time in the past, all states except Louisiana had some form of AA/CC laws. Today, North Carolina is in a very small minority of states that still recognize the heart balm laws. These laws are founded in English common law and date back at least to the 1700s, when the courts considered wives as property. “Though now actions can be brought by aggrieved spouses of either sex, the tort was born out of the premise that a wife was a husband’s chattel and that a husband should be able to seek a remedy against a paramour for the paramour’s interference with the marriage.” Lingering Relics in North Carolina Tort Law – Alienation of Affections, Campbell Law Observer, posted February 12, 2021.

It’s not certain how much longer AA and CC will remain as viable claims in North Carolina, as there have been efforts to repeal the heart balm statutes. Be aware that there is a three-year statute of limitations for bringing AA and CC claims. Discuss with your attorney whether you have a case and should pursue AA and CC claims against the paramour.

Elizabeth Hodges is a principal in Offit Kurman, whose practice is devoted exclusively to family law. If you have any questions, our attorneys at Offit Kurman are available for consultation and assistance.