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NC Court of Appeals Helps Clarify Laws Designed to Protect Marriage

Earlier this week, the North Carolina Court of Appeals upheld a lower court decision ordering a woman to pay $65,000 for having an affair with a married man. Through this judgment, the court has helped to clarify the application of two longstanding state laws designed to protect marriages from third-party interference and extramarital affairs.

The two laws relevant to this case are referred to as “Alienation of Affection” and “Criminal Conversation.” Alienation of Affection is a civil action brought against a third party who interferes in a marriage relationship and alienates the affections of the married person from their spouse, resulting in the break-up of the marriage. This is not an action against the wrongdoing spouse, but is an action brought against the interfering third party by the aggrieved spouse. Similarly, Criminal Conversation is a civil action brought against a third party for committing adultery with the aggrieved spouse’s husband or wife.

The Case

In this particular case, Brenda and Andres were married in December 2007. In early 2012, Brenda began to find evidence that Andres and Liliana, a family friend who attended the couple’s wedding, were having an affair. Although there was not conclusive evidence of sexual misconduct between Liliana and Andres, Brenda found strong circumstantial evidence, such as phone records showing the two having over 120 contacts in a one-month period, and hotel charges, including one where the hotel confirmed that Andres had stayed there with an unidentified woman. In April of 2012, Andres moved out of the marital home and eventually moved in with Liliana. The two had a child together in October 2013, and the divorce between Andres and Brenda was finalized in September 2014.

Brenda sued Liliana for Alienation of Affection and Criminal Conversation, and a state superior court ruled in her favor in July 2016. The judgment ordered Liliana to pay Brenda $65,000 in damages.

Liliana appealed the decision arguing that there was no evidence that she and Andres participated in sexual conduct prior to the couple’s legal separation. The State Court of Appeals, however, found “that evidence of post-separation conduct may be used to corroborate evidence of pre-separation conduct and can support claims for alienation of affection and criminal conversation, so long as the evidence of pre-separation conduct is sufficient to give rise to more than mere conjecture.”

Why Is It Significant?

This ruling helps to clarify a change made by the North Carolina General Assembly in 2009, which limited the application of these tort claims to acts “committed prior to a married couple’s separation.” The statute reads: “No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent.”

In this case, there was only circumstantial evidence showing that an affair had occurred prior to the physical separation of Andres and Brenda, but that circumstantial evidence was enough for the North Carolina Court of Appeals to uphold the lower court ruling in part because “evidence of post-separation conduct is competent to support findings of pre-separation conduct.”

As a result, this ruling serves to clarify and strengthen these two state civil actions that are designed to protect marriages and discourage extramarital affairs.


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