North Carolina is one of the few remaining states that still recognizes a claim called ‘Alienation of Affection’. This claim allows a spouse to file a lawsuit against a third party as the result of having a sexual relationship with the other spouse. To establish a claim for alienation of affection, plaintiff's evidence must prove:
(1) plaintiff and their spouse were happily married and a genuine love and affection existed between them;
(2) the love and affection were alienated and destroyed; and
(3) the wrongful and malicious acts of defendant produced the alienation of affection.
If you file a claim for Alienation of Affection, you are suing your former spouse’s new significant other. If you are successful in your lawsuit, and prove the above three elements, you would be entitled to receive a monetary judgment.
In North Carolina, the standard of proof requires the showing of ‘opportunity and inclination’. In proving opportunity and inclination, you must be able to prove that a set of circumstances existed that made it possible for your spouse and new significant other to be together in a romantic relationship.
It is also important to note that pursuant to North Carolina General Statute 52-13 (a): no act of the Defendant shall give rise to a cause of action for alienation of affections or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or the plaintiff’s spouse that the physical separation remain permanent. Essentially, after husband and wife stop living together, and are living separate and apart, both married spouses may live as if they are not married.
This area of the law can be complex and every case is unique. It is important that you consult an attorney who is experienced in this area of the law.