Claims for Alienation of Affections and Criminal Conversations are known as ‘heart balm actions. Alienation of Affections is an act of one party encouraging or taking part in the luring away a spouse from his/her marriage. A party might lure a spouse away from the marriage by offering gifts, personal time, sexual favors, or making negative statements about the other spouse.
In Alienation of Affections actions a person may seek damages as a result of loss of support, loss of services in the home, loss of consortium, loss of affections, emotional distress, injury to reputation and health, and separation from a parties spouse.
It is common that actions for Alienation of Affections are combined with actions for Criminal Conversations. Criminal Conversation is an action where your spouse has had sexual intercourse with another party. It must occur when the parties are married and not legally separated. Further the sex act must occur in the state of North Carolina.
A party may seek money damages from a party for dishonor of the marital bed , destruction of domestic comfort, loss of consortium, invasion and deprivation of exclusive marital rights and privileges, emotional distress, humiliation, injury to health, and loss of support.
In North Carolina, an individual who has caused a married person to suffer the loss of affection of their spouse can be sued by the injured spouse. In layman’s terms, you may sue your spouse’s paramour. Even if you do not actually file a complaint and sue the paramour, often times the threat of such a lawsuit can be used as leverage in your negotiations with your spouse as you separate and attempt to resolve issues in your domestic case, such as child custody, child support, spousal support and equitable distribution. A cheating spouse may be more likely to offer more to the injured spouse in terms of property distribution or budge in a custody dispute, if the other party agrees not to pursue a lawsuit against the person they had an affair with.
Alienation of Affection, also known as a “heart balm action”, is a tort lawsuit, involving a complaint brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors, therapists and even clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections.
To prove this type of case legally, however, you must be able to show the court the following:
1. You and your spouse were happily married and a genuine love and affection existed between you before the outside interference of a third person;
2. The love and affection was alienated and destroyed by the actions of that third person;
3. The wrongful and malicious acts of the defendant produced the alienation of affection from your spouse.
The “malicious” part is presumed if there is proof of sexual intercourse, but malice does not always mean sexual intercourse. It is not necessary for you to prove that your spouse’s lover actually set out to destroy your marriage. Rather, you must show that he or she engaged in acts that would have a foreseeable impact on your marriage.
Unlike the Alienation of Affection claim, Criminal Conversation refers to adultery only. The only element required to prevail in this type of action, is proof (or the greater weight of the evidence) that the defendant engaged in sexual intercourse with your spouse while you were still living together as a married couple.
What if the sexual encounter happened outside of the state of North Carolina?
North Carolina requires that at least one act of sex must occur within the state in order file an action for criminal conversation.
It is uncommon prior to the initiation of the action to have a confession from the perpetrator. However, one can use circumstantial and other types of evidence to prove the affair occurred, such as phone records, witness testimony, credit card and bank statements, copies of any electronic correspondence between your spouse and his/her paramour (so long as it is retrieved by legal means), and even surveillance conducted by a private investigator.
Another important aspect to these lawsuits is the establishment of actual damages suffered by the Plaintiff. When it comes time for the trial, the burden of proof is on the Plaintiff to show the jury specifically how they have been harmed by the actions of the Defendant and to provide a dollar figure for those damages. Whether it be from loss of your home to the cost of therapy required to cope with the affair, your attorney will assist you in calculating your losses and guide you in what exhibits to provide for court.
Once your lawsuit is filed and served to the Defendant, he or she will have 30 days to file an Answer, including various affirmative defenses and counterclaims. They may also file a motion for an extension of time to file this Answer. In the meantime, your attorney will likely send out discovery for the opposing party to answer, including very specific questions about his or her relationship with your spouse and requests for the production of documents and other items relevant to your case.
As part of this process, the court will also require both parties to attend mediation prior to setting the case on for trial. A neutral mediator is either selected by the parties or designated by the court, who will assist the parties in coming up with a resolution. The cost of this mediation is generally beared equally by the parties. If no resolution is achieved, the court is notified and your case will need to proceed to trial.
Family Law is an area of law that focuses on family disputes and obligations. This includes issues such as child custody, child support, divorce, property division, spousal support, domestic violence, and adoption.
It can also involve certain “heart balm actions”, more commonly known as Alienation of Affection and Criminal Conversation lawsuits, which are allowed in only nine states, including North Carolina. This field of law is one of the most contentious and difficult areas of law to navigate, and it is important that you seek someone who is skilled and knowledgeable in this type of practice.
Often times, the parties are able to resolve custody issues by agreement or in mediation. However, if a custody case goes to court, the judge will focus on what is in the best interests of the child in determining with whom your child will reside. This forces the court to direct its attention primarily to you and your spouse, examining your conduct in the past and in present to determine how you will parent your child in the future. The trial judge is given wide discretion in his or her determination of one parent’s fitness or the other, and appeals are very limited in this kind of litigation because courts of appeal are often unwilling to overturn a ruling by the trial judge who presided over the proceedings.
Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court. In disputes involving child custody and/or visitation, it is important that you have the necessary and effective tools to resolve these conflicts.
North Carolina is a “no-fault” divorce state. Neither party to the divorce is required to claim their partner is at fault for the breakdown of marriage. Accordingly, the only requirement to receive a divorce in North Carolina is that you have been a resident of the state for at least six months preceding the filing of your Complaint, and that you have been separated from your spouse for at least 12 months.
Separation occurs when one party leaves the marital residence. However, divorce is often accompanied by other issues including, but not limited to: child custody, child support, property division, and spousal support. If claims for spousal support and/or property division are not filed prior to the entry of the divorce, they are often times lost forever.
For various reasons, parents often have to relocate. As a result, custody disputes often occur and have to be resolved. If court action is needed, the court considers many issues including: the reason for the move, what benefit to the child the move will have, and what impact the move will have on the other parent’s access.
Child relocation is a complex endeavor, and it is important to have a skilled advocate to assist you in this type of action.
Property division in the state of North Carolina is referred to as equitable distribution. At any time after the parties separate, either party may file an action for equitable distribution. A final equitable distribution judgment may be rendered either before or after the parties are divorced, at the discretion of a judge. If the judgment is being entered by consent, the parties themselves can stipulate to do so prior to the divorce.
There are many factors the courts consider during an equitable distribution matter. In North Carolina Property is classified as marital, separate or divisible. Before any equitable distribution case goes to mediation or to Court, it will be necessary to identify and ascertain the values of all real and personal property, as well as debts acquired by the parties during the marriage. Further, it is important to consider the tax consequences to either party based upon the distribution of many assets.
For most parties, child support is calculated pursuant to the North Carolina Child Support Guidelines. Exceptions to this are parties whose combined gross monthly income exceeds $25,000. The factors used to calculate a parent’s child support obligaton are: both parties gross monthly incomes, other children not of this relationship, health insurance costs, work-related daycare costs, and other extraordinary expenses.
In some cases, a party can seek to deviate from the guidelines. Further, if you are a business owner or an independent contractor, it is important to determine your accurate amount of gross income. In addition, child Support can be awarded retroactively, depending on certain circumstances.
Permanent Orders for Child Custody can be modified. In order to modify a child custody order, a party must show that there has been a substantial change of circumstance affect the child’s welfare since the entry of the last order. The moving party must be able to show the court that it is in the best interest of the minor child or children to change the current custody arrangement.
Similarly, a party seeking to modify a prior child support order must also show the Court that a substantial change in circumstances has occurred since the entry of the prior order such as a significant change in the income of one or both the parties or a change in the needs of the child. Often times, these motions go hand in hand, as any change in custody would likely lead to the need to change a prior order on child support.
Spousal Support in North Carolina is found in the form of Post Separation Support and Alimony. Post Separation Support is temporary support awarded after the parties separate and paid by the supporting spouse to the dependent spouse. Unlike Alimony, post separation support is not fault-based and is only based upon the financial needs of the parties. The amount of post separation ultimately awarded is based upon the reasonable needs and expenses of the dependent spouse and the shortfall he/or she has at the end of each month.
Alimony is a separate claim from post separation support and must be filed before your divorce is final. Unless otherwise resolved in mediation or by consent, the Court will determine how much alimony, if any, a party is entitled to after consideration of multiple factors. This is where fault comes in, and marital misconduct committed by either party is one of sixteen factors considered by the Court in an alimony case. It is important to hire a family law attorney with expertise in this area, whether you are making this claim or defending yourself against one.
Domestic Violence Protect Orders are commonly known as restraining orders. In North Carolina, you can file for a Domestic Violence Protective Order against a family member, a spouse or domestic partner, a current or former household member or a person you are dating or have dated. Some of the grounds for protective order are: a party causing or threatening to cause bodily injury to another, harassment, and/or placing a party or their family in fear of imminent bodily harm or injury.
A judge can issue an ex parte temporary order that will go into immediate effect without the respondent having a chance to present evidence or testimony. This order usually lasts about 10 days, but will not go into effect until the respondent is served with a notification. A permanent domestic violence order requires a full court hearing where both you and the respondent have the chance to present evidence and testimony.
If your spouse is having an affair with another person, you may have a claim for alienation of affections and/or criminal conversation. Criminal Conversation is a tort lawsuit against a third party who has committed adultery with someone’s spouse.
The person having the affair with your spouse does not have to know that your spouse is married to be found liable for criminal conversation. Alienation of Alienation is a tort lawsuit, involving a complaint brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage.
When a family law dispute clouds your future, you cannot afford anything less than strong and effective representation. At Johnson Law, we help people work to overcome family law problems.
At Johnson Law, all we handle are family law cases. Having an experienced family law attorney by your side to guide you through the complex legal system can significantly reduce the tension and confusion.
We will listen to your story and ask questions in order to learn about your ultimate goals. Only by understanding where you would like to end up can we develop a legal strategy to help you get there.