To conclude our three-part series on the various divorce laws in North Carolina, today we will look at an action for alienation of affections, the requirements, and the effects.
Closely tied to criminal conversation, alienation of affections protects the plaintiff's right to affections of his or her spouse - the love, society, companionship, and comfort arising out of the marital relationship - while the former protects the spouse's right to sexual intercourse.
In Sebastian V. Kluttz (1969), the NC Supreme Court restated the ruling in Bishop v. Glazener (1957):
The essential elements of an action for alienation of affections are the marriage, the loss of affection or consortium, the wrongful and malicious conduct of the defendant, and a casual connection between such loss and conduct.
Basically, a husband or wife may sue his or her spouse's lover for ruining the marriage; the aggrieved spouse considers this a breach of his or her right to be loved as a result of the marriage.
The fault occurs during the marriage (though the action can be taken months afterwards). The wronged spouse must show that the couple was, before the misconduct, "happily married." As long as there was some affection between the couple and that they did not slowly drift apart before the improper behavior, this satisfies the "marriage" requirement.
Next, the plaintiff must show "alienation" or the destruction or serious diminution of the love and affection of the spouse to the plaintiff. Filing for a divorce or seeking a separation agreement (or divorce from bed and board), along with a plethora of other reasons, can satisfy this criteria. Anything that negatively affects the affections, listed as "love, society, companionship, comfort, conjugal kindness, and a favorable mental attitude toward the plaintiffs," may be used to determine alienation.
To prove "wrongful and malicious conduct of the defendant," plaintiff must show that the lover's conduct consists of affirmative (willful) acts "intending to induce or accomplish the result."
Malice means that these acts are unjustifiable, causing injury complained of, a disposition to do wrong without legal excuse, or a reckless indifference to the rights of others. Plaintiff will most likely draw from personal experience with the lover to determine if his or her actions were wrongful and malicious.
Finally, the plaintiff needs to link the conduct to the cause of the alienation. The lover's conduct need not be the only cause of the alienation, but it must be a controlling cause.
Alienation of Affections is a marital tort that a spouse may cite as a cause of action in a lawsuit seeking compensation for damages such as "humiliation, shame, mental anguish, loss of sexual relations, and disgrace." Likely to occur after the marriage has already fallen to pieces, the wronged spouse still has the right to recover after the falling out.
In 2014, a superior court judge dismissed a case of Alienation of Affections and Criminal Conversation, Rothrock v. Cooke, ruling that NC's laws regarding the two torts are unconstitutional and in direct violation of both the first (1st) and fourteenth (14th) amendments of the U.S. Constitution. Yet, both remain a part of the North Carolinian legal system for the moment.
As one of the only judicial ways to punish adultery, controversy continues to surround the laws in the remaining states permitting alienation of affections and criminal conversation.