Divorce is never easy, especially when your spouse had an affair. In North Carolina, if your spouse had an affair, the law allows for you to file a lawsuit against the person your spouse had an affair with. This is called an Alienation of Affection lawsuit.

1. What is Alienation of Affection?

Alienation of Affection is a lawsuit brought by a married (or formerly married) person, who alleges that the actions of a third party deprived the married (or formerly married) person of the love and affection of his or her spouse. Alienation of Affection is a common law tort. In other words, it is a wrongful act for which the common law (law established by judicial decisions) provides a civil remedy. North Carolina is one of only six states in the United States that still recognizes a claim for Alienation of Affection.

2. What Must a Person Filing an Alienation of Affection Lawsuit Show?

The person filing an Alienation of Affection lawsuit must show 3 things:

1. The person and their spouse were married and a genuine love and affection existed between them
2. The love and affection was alienated and destroyed
3. The wrongful and malicious acts of the third party alienated the affection of plaintiff’s spouse.

3. What Type of Proof is Needed in an Alienation of Affection Case?

First, a person filing an Alienation of Affection case must prove that their marriage had an existing and genuine love and affection. This does not mean that their marriage was perfect, but they must prove that their spouse had genuine love and affection for them. Evidence of a loving and affectionate marriage could include, love notes, cards, photos showing love between the spouses, and testimony of friends and family about the nature of the relationship.

Second, a person filing an Alienation of Affection case must prove that the love and affection within the marriage was destroyed or no longer exists between the spouses. Evidence showing that the love and affection has been destroyed may be that the spouses are living in separate bedrooms now, they are having conversations about divorce, or they are separated seeking a divorce or are now divorced. It can be either a partial or full loss of love and affection.

Third, a person filing an Alienation of Affection case must prove that the loss of marital love and affection was caused by a third party. The third party must actively participate in causing one spouse’s loss of the other spouse’s affections, through initiative or encouragement. The third party’s actions do not have to be the sole cause of the loss of marital love and affection, but they must be a “controlling or effective” cause. It is not enough that the third party was the recipient of a spouse’s love and affection. The third party must act intentionally to gain the love and affection and alienate them from the other spouse. Evidence showing intentionality could be purchasing gifts for the spouse or taking him or her on trips.

4. How much money is typically awarded in an Alienation of Affection lawsuit?

The remedy for a successful Alienation of Affection case is a monetary award paid by the defendant to the plaintiff (person who brought the claim) but the amount of that award depends on each case. Since the defendant is the one who pays the resulting monetary award for a successful claim, it might NOT be wise to sue a third party who has little money or resources available. Successful Alienation of Affection cases can have a wide range of verdicts – starting from zero dollars to millions. In other words, you may receive a successful verdict but could still be awarded zero dollars.

5. Can out of state individuals be held liable for Alienation of Affection?

North Carolina has what is called a “long arm” statute. That means that a North Carolina court can exercise jurisdiction over someone who does not live in the state of North Carolina. Basically, North Carolina can require a person to come to court in North Carolina who does not live here. All that the “long arm” statute requires is that the plaintiff must only claim an injury within the state to establish jurisdiction. The statute does not require there to be evidence or proof of the injury. So, if intimate acts between the married spouse and the third party occurred in North Carolina, the third party who is not a resident of North Carolina could potentially be held liable for Alienation of Affection.

6. What if I live in South Carolina and my Spouse cheated with someone who is in North Carolina?

If your spouse had an affair with a resident of North Carolina, and you believe there were intimate acts committed between your spouse and a third party in North Carolina there are two potential avenues you could pursue. The first would be to file an Alienation of Affection lawsuit in the Federal District Court in your state using Diversity Jurisdiction. Diversity jurisdiction is when a federal district court can hear a claim for relief arising under state law because the two parties of the lawsuit are citizens of separate states, and the plaintiff has alleged at least $75,000 in damages. When a federal court is hearing a case under diversity jurisdiction the federal court must apply the applicable state law.

The other potential avenue that you could take is to file an Alienation of Affection claim in a North Carolina district court against the person your spouse had an affair with who is a North Carolina resident. By filing in a North Carolina state court, you are consenting to NC exercising personal jurisdiction over you. North Carolina automatically has personal jurisdiction over citizens of their state.

7. Does Alienation of Affection only apply to cheating spouses?

Not necessarily. North Carolina recognizes a number of possibilities for Alienation of Affection cases, including in-laws or friends who have advised one spouse to leave the other, although adultery does tend to be the most common.

If you have questions about Alienation of Affection in North Carolina, do not be afraid to ask for help. Divorce is tough, but you don’t have to navigate it alone. Make an appointment with a divorce and family law attorney in your area to discuss your Alienation of Affection claim and the specific circumstances of your case.