North Carolina Divorce Laws Regarding Adultery

Here's the role adultery play in a North Carolina divorce.

By , Attorney · UC Law San Francisco

Adultery can be used as a basis for divorce in North Carolina. In addition, North Carolina is one of the few states where an innocent spouse can sue a third-party that broke up the marriage. This article provides a basic overview of adultery laws in North Carolina and how they can impact a divorce.

Criminal Conversation and Alienation of Affection

In North Carolina, innocent spouses have the option of pursuing a civil lawsuit against their spouse's lover and alleging "criminal conversation" or "alienation of affection." Through such lawsuits, injured spouses can ask a judge or jury to order that the "defendant" (third-party lover) pay compensatory damages, which are money damages based on loss of consortium (marital affection and fellowship), mental anguish, humiliation, injury to health, and/or loss of support. Innocent spouses may also request punitive damages (money damages to punish defendants for their bad actions). Although criminal conversation and alienation of affection are very similar, they are actually two separate causes of action, which require different types of evidence.

What is Criminal Conversation?

Although the name suggests that a crime has been committed, a "criminal conversation" action is not a criminal case. Instead, it's actually a civil case, brought by a plaintiff (the party that was allegedly wronged) in a civil court. This is very different from a criminal case, which is tried in a criminal court by the state or some other public official. Defendants that have committed criminal conversation will not face criminal penalties or the possibility of jail time.

Criminal conversation requires solid proof that your spouse engaged in sexual relations with the third-party defendant. Most commonly, evidence of adultery is obtained by hiring a private investigator to photograph or videotape the affair. The innocent spouse seeking damages must prove the following three elements:

  • the innocent spouse is legally married to the adulterous spouse
  • sexual intercourse took place between the adulterous spouse and a third-party individual (you can't sue a business, such as a "gentlemen's club" for criminal conversation)
  • the sexual intercourse occurred during the marriage, not after separation, and
  • the adulterous act(s) took place within North Carolina's three-year "statute of limitations" (which means the lawsuit must be filed no more than three years from the last act of adultery).

There is only one defense to criminal conversation; the spouse who was cheated on encouraged or consented to the adulterous affair before it took place.

What is Alienation of Affection?

To prove alienation of affection, the plaintiff must show the following elements:

  • the spouses shared a loving marriage with genuine affection and love
  • the love and affection has been destroyed
  • the malicious behavior of the third party was the direct cause of the alienation leading to the end of the marriage, and
  • the innocent spouse has been damaged in some way.

As with criminal conversation, you must file suit for alienation of affection within three years from the date the last wrongful act occurred.

Unlike criminal conversation, the innocent spouse/plaintiff doesn't have to prove that actual sexual intercourse took place. The plaintiff only has to prove that the defendant's actions caused alienation and led to the end of the marriage. This civil action can even be brought against a mother-in-law, for example, who advised the husband or wife to leave the marriage.

As stated above, innocent spouses can recover both compensatory and punitive damages.

How Adultery Affects Divorce in North Carolina

Alimony and Custody

In North Carolina, courts may consider either spouse's marital misconduct, including adultery, when deciding how much alimony to award. In addition, this may be a factor courts consider when making decisions about child custody.

Division of Property

Typically, adultery won't influence a judge's decision about the division of property. If an extramarital affair is unrelated to the economic condition of the marriage, then the adultery is not a proper factor for consideration.

However, if the adultery affected the married couple's finances, it may become relevant. For example, if the cheating spouse spent thousands of dollars of marital assets to buy gifts for his or her lover, or to pay for expensive hotel rooms during the affair, a judge may take this into considering when dividing assets between the spouses.

Contacting a Divorce Attorney for Help

Many divorces are complex and require specialized legal knowledge, particularly when issues of marital misconduct come up. If you need advice about how adultery might impact your own divorce, you should contact an experienced family law attorney.