Adultery can be used as grounds for divorce. This can end up costing the cheating spouse’s lover a bundle of money. This is one of the few states that allow the innocent spouse to sue the third-party who broke up their marriage. In North Carolina, a lawsuit can be brought against the husband or wife’s lover either alleging “Alienation of Affection” or what is known as “Criminal Conversation”. While prosecution may be rare, it is still a crime to commit adultery in North Carolina.
Criminal Conversation and Alienation of Affection
The injured spouse who was cheated on has the option to pursue civil litigation against the third party that was involved. There are two separate causes to bring legal action, both of which require different types of evidence.
What is Criminal Conversation?
This requires solid proof that your spouse engaged in sexual relations with the third party you are suing. Evidence can be obtained by hiring a private investigator to obtain photos or videotape. The spouse seeking damages must prove three elements:
- The innocent spouse is legally married to the adulterous spouse
- Sexual intercourse took place between your spouse and a third party
- The adulterous act(s) took place within North Carolina’s three-year statute of limitations
The defendant being sued can only use one type of defense; that the spouse who was cheated on encouraged or consented to adultery before it took place.
Proving Alienation of Affection
North Carolina law limits the amount of time in which you can bring an Alienation of Affection case. This is known as the statute of limitations, which requires you to file suit within three years from the date the wrongful acts occurred. To prove Alienation of Affection, the plaintiff must show the following elements:
- Both husband and wife had a loving marriage with genuine affection and love
- That the love and affection has been destroyed
- That the malicious behavior of the third party was the direct cause of the alienation leading to the demise of the marriage
- That the victim spouse has been damaged in some way
Unlike Criminal Conversation, the plaintiff does not have to prove actual sexual intercourse took place. They only have to prove that the defendant’s actions caused alienation that affected the marriage. This civil action can even be brought against a mother-in-law who advised the husband to leave his wife. Victims can recover both compensatory and punitive damages. Compensatory damages would include such things as emotional distress, mental anguish and humiliation. Punitive damages are sought when the defendant’s conduct was malicious in nature.
How Adultery Affects Divorce in North Carolina
When one spouse commits adultery, it is usually the primary reason for the breakup of the marriage. Family court judges still look upon this unfavorably. Marital misconduct can affect the outcome regarding the property division, the amount of alimony awarded and how child custody is determined. Marital misconduct is legally defined as any conduct that undermines the marriage. This becomes a factor during divorce if the offender’s behavior causes the victim spouse to take on extra burdens during the marital relationship. There are cases where the cheating spouse has spent thousands on their lover by showering them with gifts, or used marital assets to pay for expensive hotel rooms. All of this will be taken into consideration when divvying up the assets.
Improper behavior can affect the relationship with the children, especially if the children are at an age where they understand that Daddy is cheating on Mommy. Many children feel betrayed and become angry, often acting out with negative behavior of their own. Judges or juries who may be deciding the outcome of the divorce will seek to reward the victimized spouse by granting custody to the non-cheating spouse.
When a Divorce Attorney Can Help
The divorce laws in North Carolina can be highly complex and require great legal knowledge. When your future is at stake, it may be time to seek legal counsel. An experienced family law attorney can help by making sure that the adulterous spouse is held liable for their actions. They know how the court system works and often know which judges will frown on this type of behavior. Therefore, you may be able to obtain a more favorable settlement by proving adultery in your case.
