Alienation of Affection & Criminal Conversation in the Carolinas

What You Need to Know About Alienation of Affection in North & South Carolina

When a marriage is ruined by the interference of a third party, often through an extramarital affair, some states will hear a lawsuit against the third party. North Carolina is one of only seven states that accepts two different types of claims filed by the affected spouse: alienation of affection and criminal conversation. 

Read on to learn more about criminal conversation and alienation of affection in North Carolina and South Carolina, as well as how our attorneys at Collins Family & Elder Law Group can help. You can also reach out to our firm directly to request a completely confidential consultation with a member of our legal team.

Call (704) 289-3250 or contact us online today to learn more.

What Is Alienation of Affection?

Alienation of affection is a lawsuit filed by a married person (or someone who was previously married) alleging that a third party’s actions destroyed the love and affection in their marriage. This lawsuit is typically filed against a third party, also called a paramour, who negatively affected the marriage in some way.

Alienation of affection is not caused by a natural decline of happiness between two people but by a purposeful action that ruined a good marriage. For example, a spouse could file an alienation of affection lawsuit if their spouse had an affair that caused a decline of marital love and affection and eventually led to divorce.

However, an alienation of affection lawsuit does not always reference sexual infidelity. A plaintiff can file a lawsuit against any person whose influence destroyed the love and affection in their marriage. This could be an in-law or friend who shattered a marriage through their negative actions or influence. 

Does South Carolina Recognize Alienation of Affection Lawsuits? 

South Carolina courts do not recognize alienation of affection lawsuits or criminal conversation lawsuits. In 1992, the South Carolina Supreme Court voted to abolish alienation of affection and criminal conversation lawsuits because they “foster bitterness.” In fact, only seven states recognize these lawsuits: North Carolina, Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah. However, adultery is still recognized in South Carolina courts as grounds for divorce, alimony (spousal support) claims, and child custody and visitation. 

What Must Be Proven in an Alienation of Affection Lawsuit? 

In order to file an alienation of affection lawsuit, a plaintiff must prove these three things about their marriage: 

• The marriage was happy, and there was genuine love and affection between the partners
• The genuine love and affection that once existed has been alienated or destroyed 
• The love and affection were alienated or destroyed because of the defendant’s malicious and wrongful actions

How to Prove Love & Affection Once Existed 

A number of things can prove the existence of love and affection in a marriage, such as cards, text messages, social media posts, or notes that demonstrate love. The plaintiff can also make a list of the ways their spouse showed love before alienation of affection occurred, like bringing them flowers, cooking them a special meal, or surprising them with gifts. The plaintiff can also ask friends and family members to attest to the love and affection they previously saw in the marriage. 

How to Prove Alienation of Affection

Alienation of affection is difficult to prove in most situations. It’s extremely hard to know from the outside looking in what’s going on in a relationship. And it’s even more difficult when both parties are involved in a lawsuit. Feelings that were once tender and positive become hostile and cold. That’s what makes alienation of affection cases so difficult to navigate. Not everything is black and white, yet these lawsuits must be based on clear-cut facts. 

There are so many reasons a marriage could fail, but alienation of affection refers to a very specific reason: a person interfered in and effectively destroyed a marriage. If this act had never occurred, the plaintiff and spouse would still be together in a marriage full of love and affection. 

In order to successfully file a lawsuit, the plaintiff needs to prove that a malicious, wrongful action occurred. In the case of an affair, for example, the plaintiff must prove that sexual intercourse occurred, as this is almost always considered to be a malicious action. The plaintiff can prove this with evidence of intimate text messages, long phone calls, or secret meetings between their spouse and a third party.

It’s important to remember that the defendant, or person who interfered in the plaintiff’s marriage, can defend themselves using various tactics. They could claim they didn’t realize the adulterous spouse was married throughout the affair, or that there was no love or affection in the marriage when the affair started. They could also claim that the plaintiff was having an affair, or that they consented to their spouse’s affair with a third party. 

What Is Criminal Conversation? 

Criminal conversation is a civil claim that alleges the defendant had sexual intercourse with the plaintiff’s spouse during their marriage. 

The plaintiff must prove three things in this claim:

• The plaintiff and the alleged adulterous spouse were legally married
• Sexual intercourse occurred between the alleged adulterous spouse and a third party during the marriage
• This sexual intercourse occurred before the plaintiff and their spouse were separated

How Are Alienation of Affection & Criminal Conversation Cases Different? 

Alienation of affection and criminal conversation are similar, but there are a couple of important distinctions: 

• The plaintiff MUST be able to prove that sexual intercourse occurred between their spouse and the defendant in a criminal conversation lawsuit. This proof is not always required in an alienation of affection case. 
• It doesn’t matter if there was love and affection in a marriage at the time of the malicious act. It could be an unhappy marriage, but the main point is that the plaintiff and the adulterous spouse were legally married and not separated when the act occurred. 

Things to Keep in Mind with Alienation of Affection Cases 

If a marriage has “love and affection,” it’s not always perfect and free of fighting or disagreements. Every marriage has its ups and downs, but these ups and downs don’t always constitute alienation of affection.

Being married doesn’t automatically mean that there is love and affection between spouses. In fact, a lack of love or affection from the beginning of a marriage can be used to counter an assertion of alienation of affection. So, if a marriage was unhappy to begin with and completely barren of love and affection, the defendant could claim that there was no love and affection to be destroyed in the first place.

The plaintiff isn’t required to show that the defendant committed an act with the intention of destroying the love and affection in their marriage. That rarely happens. Instead, they can prove that the defendant intentionally committed an act—like an affair—that effectively destroyed all love and affection. It’s less about the intentions behind the act, and more about the effects of the intentional act. 

An alienation of affection lawsuit cannot stand if a sexual affair with a third party occurred after separation. If the defendant can prove that the plaintiff and their spouse were separated at the time of the affair and that they intended to stay separated, the case won’t hold up in court.