Heart Balm Torts Alive & Well in NC

The vast majority of states have abolished the so-called “heart balm torts” of alienation of affections and criminal conversation. However, these two torts are alive and well in North Carolina. Because of this, it’s in your best interest for you to understand these torts so that you don’t run afoul of them.

For those of you who are not familiar with the term, a “tort” is defined by Black’s Law Dictionary (5th edition) as “[a] private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.” In North Carolina, a Plaintiff who sues a Defendant for alienation of affections and/or criminal conversation is entitled to try his/her case before a jury.

To prove a claim for alienation of affections, the Plaintiff must produce evidence of the following: (i) Plaintiff and his/her husband were happily married and a genuine love and affection existed between them; (ii) their love and affection was alienated and destroyed; and (iii) the wrongful and malicious acts of Defendant produced the alienation of affections. (A malicious act, in the context of an alienation of affection claim, has been loosely defined to include any intentional conduct that would probably adversely affect the marital relationship).

While an alienation of affections claim is most often based upon conduct that occurred before the spouses began to live separate and apart, the claim can also be supported by evidence of post-separation acts by the Defendant. Destruction of the marriage is not a necessary element of claim for alienation of affections. Rather, the action lies for the diminishment of affection within the marital relationship. Thus, while damages will obviously be affected, the action lies for the diminished affection, and a partial loss of affection is sufficient to support the action. It is also not necessary for the Plaintiff to show that he/she knew about the alienating behavior at the time it was occurring. In fact, in most instances, the wronged spouse will only learn of the Defendant’s alienating actions after the damage has been done.

To prove a claim for claim for criminal conversation, a Plaintiff must present evidence demonstrating: (i) the existence of a marriage between the him/herself and his/her spouse, and (ii) sexual intercourse between Defendant and Plaintiff’s spouse during the marriage of Plaintiff and his/her spouse. It is also necessary to be able to show that the act of sexual intercourse took place in North Carolina.

A claim for criminal conversation can be based upon post-separation sexual intercourse between Defendant and Plaintiff’s spouse. The existence of a separation agreement between a Plaintiff and his/her spouse which purportedly contains a waiver between the spouses of their right to exclusive sexual intercourse with each other will not shield the Defendant from liability for criminal conversation based upon the Defendant’s post-separation sexual intercourse with Plaintiff’s spouse. The Defendant is only protected from liability in this regard if the Plaintiff and his/her spouse’s separation agreement contains an express waiver of grievances against third parties for tortious conduct. So, as unromantic as it may sound, if you are involved with someone who is separated but not yet divorced, you would be wise to ask to read his/her separation agreement and
make sure that the 3rd party waiver is included before you begin to have a sexual relationship with him/her.