ALIENATION OF AFFECTION AND CRIMINAL CONVERSATION: THE DETAILS
Too often infidelity is part of relationships. The good news is you may have recourse. On July 26, 2018, Durham County Superior Court Judge Orlando Hudson awarded Keith King more than $8.8 million.
Lets talk about why:
What is Alienation of Affection?
Alienation of Affection is a civil action you can file against the paramour of your spouse. In order to prevail, you have to convince the jury that:
1. You and your spouse were happily married and genuine love and affection existed between you;
2. The love and affection was alienated and destroyed; and
3. The wrongful and malicious acts of the Defendant produced the Alienation of Affection.
What if my spouse’s paramour didn’t intend to alienate my spouse from me?
You do not have to prove that your spouse’s paramour set out to alienate your spouse’s affection for you. You only have to show that it was foreseeable the paramour’s actions would have an impact on your marriage.
You also do not have to show the paramour was the one who pursued your spouse. All you have to show is that the paramour was an active participant, or encouraged the affair.
Does the paramour have to engage in sexual intercourse to file for Alienation of Affection?
No. You do not have to show your spouse and the paramour had sex to proceed on a claim for Alienation of Affection, but sex does make it easier. You may be able to proceed against a third party, such as a spouse’s friends or family members, where there wasn’t a sexual relationship.
What is Criminal Conversation?
Criminal Conversation is a civil action you can file against your spouse’s paramour, but it differs from Alienation of Affection because you have to show they had sexual contact. To prevail, you have to convince the jury:
1. There was a marriage between you and your spouse; and
2. There was sexual contact between your spouse and a third party during the marriage and prior to separation.
How do I prove Criminal Conversation?
You can prove Criminal Conversation through direct or indirect evidence. You do not have to have actual video of your spouse having sex, or an admission from your spouse or their paramour that there was sex. You only need to show “inclination and opportunity.”
Inclination and opportunity means that you show through the actions of the parties that they had the desire and time to engage in sexual intercourse. This can be proved with text messages, emails, video of them headed into a hotel, etc. There is a myriad of ways to show inclination and opportunity.
Why would I file for Alienation of Affection or Criminal Conversation?
Three Big Reasons:
1. You may be able to obtain money damages from your spouse’s paramour either at trial or settlement prior to trial. While there are some high-profile awards for millions of dollars it’s really hard to collect on those judgments, and settlements are generally much lower;
2. You can use the lawsuit to gather dirt on your spouse. Once you file a lawsuit you can request emails, text messages, etc. from your spouse’s paramour, and/or take their deposition. Once the paramour realizes they may have liability you can use that as leverage to pressure them to flip on your spouse. Infidelity is useful in Alimony cases, and may be useful for Child Custody or Property Division; and
3. You can use the lawsuit against your spouse’s paramour as leverage in your settlement negotiations with your spouse. Everything is up for negotiation, and a lawsuit against a paramour, especially if your spouse is still in a relationship with that person, can be powerful leverage.
What should I do if I suspect my spouse is cheating?
If you suspect your spouse is cheating the best thing you can do is be quiet, and collect evidence. The best evidence is the evidence collected prior to separation. Consult with a lawyer, hire a lawyer, and allow your lawyer to manage hiring a Private Investigator.
How long do I have to file Alienation of Affection or Criminal Conversation?
You have 3 years from the last act of the paramour that gave rise to claim for Alienation of Affection or Criminal Conversation to file your lawsuit.
How do I file for Alienation of Affection or Criminal Conversation?
Like all lawsuits, actions for Alienation of Affection and Criminal Conversation is started by the filing of a complaint. Usually you send a demand letter to the third-party prior to filing a complaint, but it is not required.
There are other claims we may be able to include with Alienation of Affection or Criminal Conversation such as Intentional Infliction of Emotional Distress or Negligent Infliction of Emotional Distress.
What do I do now?
Regardless of which side of the relationship you’re on, it’s best to speak to a lawyer sooner rather than later. The sooner your lawyer is involved the more options we’ll have available to protect your interests, the faster your case will resolve, and then you can move on to the next chapter in your life. Together we will settle your case as quickly as possible.
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