Recent news in Winston-Salem is the appellate court allowing the alienation of affection claim involving Andrew “Flip” Filipowski to continue.* In this case, Oliver v. Filipowski (see http://dockets.justia.com/docket/north-carolina/ncmdce/1:2010cv00764/55054/ ) Oliver is claiming that Mr. Filipowski engaged in acts that destroyed the Oliver family’s marriage.
I can tell you I’ve had people inquire about these cases at my law firm. However, if the person causing the alleged act of alienation of affections is not rich OR the adulterous spouse doesn’t have money, then it’s unlikely that this case will be taken. That is, unless, the harmed spouse has money to fuel the litigation fight. This should apply to all married folks, but especially if a person is rich, they really should be careful getting into an adulterous relationship in North Carolina. Otherwise, they might find themselves defending a lawsuit that has ample opportunity to expose events one might rather have disgorged in public.
What is alienation of affection? To prove an alienation claim, the plaintiff (the spouse that wasn’t involved in the affair) has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. Note: There is no requirement of proof that the defendant set out to destroy the marital relationship. Only that the defendant/lover intentionally engaged in acts which would foreseeably impact on the marriage. Note also: this means it doesn’t have to be just sex between the spouse in the affair and the defendant/lover.
A defense to Alienation of affections is that the defendant didn’t know the adulterous spouse was married.
Criminal Conversation is a different cause of action. Criminal conversation puts the burden of proof on the plaintiff to prove (1) an act of intercourse by defendant and adulterous spouse, (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. The defense to criminal conversation is that the spousal parties were separated at the time. But there are exceptions and issues involved in proving separation and acts that occurred before and after the date of separation.
Bottom line: a person getting involved in a adulterous relationship better ask themselves: is it really worth it? And I’m not getting moralistic with that question.
*The Oliver case had a constitutional defense of ‘freedom of speech’. Really? This fits a statement Professor Benfield taught us in Contracts I, that there are some folks who believe: “If you can’t make good arguments, make bad ones”.