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Alienation of Affection: North Carolina’s Heart Balm Tort Claims

In business, life, and relationships it never pays to cheat and that’s especially true in North Carolina where on Aug. 19, a Superior Court judge decided that Greg Jernigan must pay Robert Kevin Howard $750,000 for sleeping with his wife..

Also in North Carolina, in 2018 Keith King had a judge order another man to pay him $8.8 million for wrecking his marriage.
This is all due to North Carolina’s heart balm torts .The legal argument is scarcely more intricate than this: He had a happy marriage until someone came along and lured away his wife.

Only a handful of states still recognize this situation as a cause of legal action, holding on to ideas about liability and wrongdoing that took hold in 17th-century England and reflected the “common-law assumption that the married woman was her husband’s chattel,” according to an account of North Carolina family law written by Suzanne Reynolds of Wake Forest University School of Law. In modern times, the basis for the claim shifted from a property interest to the benefits of “love, society, companionship, and comfort arising out of the marital relationship,” according to law professors Charles E. Daye and Mark W. Morris.

There are two different types of heart balm tort claims in North Carolina. The first, alienation of affection, involves interference with a marriage. To hold a third party legally liable for this tort, you must be able to establish the following two elements:

A married couple had a genuine and loving relationship

Through wrongful or malicious actions, a third-party defendant (a paramour) alienated that relationship

Notably, the plaintiff in this type of legal case does not have to prove that the defendant intentionally ruined the marriage or that they engaged in an act of adultery with a happily married person.

The other type of heart balm tort is known as criminal conversation. While it is somewhat similar to alienation of affection—indeed, in many heart balm civil lawsuits, both claims are brought concurrently—it is also a separate cause of action. The elements of criminal conversion are as follows:

There was a valid, intact marriage

The defendant engaged in a sexual relationship with the spouse

A criminal conversion claim is generally considered to be more challenging to defend than is alienation of affection. With alienation of affection, ignorance of a marriage and lack of a genuine loving relationship are both valid defenses. However, neither defense is valid in a criminal conversion claim.

In a 1992 judgment casting aside these principles, the Kentucky Supreme Court affirmed that “affection between spouses cannot be owned.

Although  alienation of affection claims are still recognized by a hand full of states, namely Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah, it is no longer recognized in Georgia. Up until 1979, Georgia did recognize the tort of alienation of affection. However, on April 4, 1979 Georgia’s legislature repealed the law allowing for alienation of affection actions. Specifically, Georgia law now states: “Adultery, alienation of affections, or criminal conversation with a wife or husband shall not give a right of action to the person’s spouse. Rights of action for adultery, alienation of affections, or criminal conversation are abolished.”

Since many states have abolished alienation of affection claims, some people have attempted similar claims under different legal theories, like Intentional Infliction of Emotional Distress (IIED) or fraud. Neither of these are easy to prove and courts are often hesitant to apply these legal theories in the context of marriage.

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