By Jim DeMay
North Carolina is one of only a few states in the country that still recognizes the tort of “alienation of affections”, which gives a party the right to sue their spouse’s lover in the event of the spouse engaging in an extramarital affair. To prove alienation of affections, a party must satisfy three elements: (1) that a marriage with a genuine love and affection existed between the party and his or her spouse, (2) that the love and affection was alienated and destroyed, and (3) the malicious and wrongful acts of the spouse’s lover caused the alienation of affections. “Malice” is presumed in the event of sexual intercourse between the spouse and the spouse’s lover; however, sexual intercourse is not always necessary to prove alienation of affections.
On June 12, Superior Court Judge John O. Craig ruled in a Forsyth County case that North Carolina’s alienation of affections law is unconstitutional as it violates civil rights protected under the First and Fourteenth Amendments to the United States Constitution. Judge Craig also noted in his written opinion that parties often use an alienation of affections lawsuit to blackmail their spouse or to gain leverage against the spouse in another civil proceeding.
Judge Craig’s decision is not binding precedent on other alienation of affections action in the state, and the ruling will most likely be appealed to the North Carolina Court of Appeals and then the North Carolina Supreme Court. Nonetheless, the decision bears monitoring as the case makes its way through the appellate channels. For more information about North Carolina alienation of affections laws, contact a Concord family law attorney with Ferguson, Hayes, Hawkins & DeMay, PLLC at 704-788-3211.