North Carolina is just one of seven states that continues to recognize so-called “heart balm” lawsuits, including alienation of affection and criminal conversation. In its recent decision in the case Maleck v. Williams, the North Carolina Court of Appeals upheld the constitutionality of these claims in the face of a constitutional challenge.
Alienation of affection and criminal conversations are two tort claims available to aggrieved spouses in North Carolina against their spouse’s paramour. In an alienation of affection claim you must show that:
(a) There was genuine love and affection between the plaintiff and their spouse;
(b) The love and affection was destroyed and alienated by the acts of the third-party;
(c) The third-party’s wrongful and malicious conduct was the controlling or effective cause of the alienation; and
(d) Damage resulted to the innocent spouse.
Criminal conversation claim is a per se tort that requires showing only that there was a valid marriage and that the paramour had sex with plaintiff’s spouse.
In Maleck v. Williams, the North Carolina Court of Appeals addressed whether a Superior Court Judge in Forsythe County had the proper authority to rule that the claims of alienation of affection and criminal conversation are unconstitutional. The defendant in Williams asserted that these “heart balm” claims infringed on his and others’ “First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.” The Court of Appeals reversed the Superior Court Judge’s decision and sided with the plaintiff in upholding these torts, finding that the government has a “substantial government interest” in protecting marriages through the permission of such causes of action.
Although the constitutionality of these heart balm torts was upheld, the Court of Appeals began its opinion with a scathing statement that “these laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.” It is clear the Court of Appeals does not approve of these archaic torts and wishes that they no longer existed but, nevertheless, had to rule according to the constitutionality of them. Barring some change in these laws by the North Carolina General Assembly, claims for alienation of affection and criminal conversation are here to stay.
To speak with a Charlotte family law attorney about alienation of affection and criminal conversation, please give us a call at (704) 810-1400 to schedule a consultation.