When you find out your spouse has committed adultery, it is emotionally devastating. For some people, the emotional toll is so great that it causes significant depression, anxiety and other mood changes that affect their work and home life in a significant way. Some people experience severe insomnia, racing obsessive thoughts, sudden weight loss or uncontrollable crying. The emotional and mental fallout can last years. This is why family law clients often ask if they can sue the unfaithful spouse for emotional distress. The answer, in North Carolina, is more than likely “no.”
There are exceptions to this general rule. In North Carolina, you may sue your spouse for intentional infliction of emotional distress (IIED) if his or her conduct toward you was so “extreme and outrageous” that it caused you severe emotional distress. In these cases, the plaintiff demands that the defendant pay money to compensate for the harm caused by the spouse’s harmful conduct. Punitive damages also may be awarded.
Generally, however, spouses cannot sue one another for the emotional damage caused by an affair. Why not? In IIED lawsuits, the defendant’s conduct must be more than insulting, bothersome or offensive. The conduct has to be considered so “extreme and outrageous” that it “shocks the conscience” of the average person. A judge, rather than a jury, initially decides whether the alleged conduct meets this legal threshold. So far, in these cases between spouses, North Carolina appellate courts have not ruled that adulterous conduct, in itself, rises to the necessary “extreme and outrageous” legal standard. This is consistent with the majority of appellate court decisions of several other states that have addressed the same issue. To learn more about what constitutes extreme and outrageous behavior in intentional infliction of emotional distress cases in North Carolina, click here.
Does that mean a spouse who has been cheated on has no remedy? Not necessarily. While the threshold for extreme and outrageous conduct may be so high in emotional distress claims between spouses as to effectively prevent most claims, at this point the North Carolina appellate courts have not absolutely ruled that under no circumstances can one spouse sue the other for conduct related to an affair. Each case is fact-specific and should be analyzed individually on its own merits.
For example, if your spouse contracted herpes from an adulterous affair and then transmitted it to you (or vice versa), your case involves more potential claims than adultery. In that situation, a court may find the conduct to meet the extreme and outrageous threshold and allow an emotional distress claim (as well as a variety of other claims).
Additionally, if your spouse cheated on you, or you cheated on your spouse, while you were living together in North Carolina, the third-party paramour (the person with whom you or your spouse had and affair) could potentially be sued for alienation of affections and/or criminal conversation. North Carolina is one of the few states that still recognize these two claims.
A person may be liable for alienation of affection if the plaintiff can prove the three things. First that there was genuine love and affection between the spouses. The marital relationship does not need to be perfect; it is enough to show that some degree of love and affection existed before the third party’s interference. Second, that the defendant’s conduct intended to destroy the marital relationship. In this regard, the third party’s reckless indifference to the fact that the behavior would destroy the marriage is sufficient to show intent. Third, that the conduct did in fact damage the marital relationship. The affair does not have to be the sole reason the marriage ended. It is sufficient if it was a controlling cause.
Criminal conversation on the other hand, is simply having sex with a married person who is not yet separated from his or her spouse. If you have sex with a married person in North Carolina who is not yet separated, you could technically be sued for criminal conversation, even if there was no genuine love and affection between the spouses and even if your actions did not cause the marriage to end. As a practical matter though, most criminal conversation lawsuits are typically filed along with alienation of affection claims, in situations where the person leaves their spouse to be with the affair partner.
In determining what amount of damages to award in both alienation of affection and criminal conversation cases, the jury considers a variety of evidence, including the mental anguish and emotional distress suffered by the plaintiff, injury to the plaintiff’s reputation, loss of support, and loss of consortium (i.e. loss of the marital fellowship of the other spouse). The jury also considers the quality of the parties’ marriage prior to the third party’s interference. As a general rule, a jury is likely to award more damages when the evidence shows the spouses had a really good relationship prior to the affair. On the other hand, damages awarded, if any, may be minimal when the spouses had significant marital troubles even before the third party got involved, such where there were past affairs by one or both spouses before the third party ever came into the picture. It is even possible for the jury to decide that the defendant is liable for criminal conversation as a result of having sex with the plaintiff’s spouse, but that the defendant is not liable for alienation of affection, and award the plaintiff nominal damages of only One Dollar.
Some North Carolina plaintiffs have received large monetary awards in alienation of affection and criminal conversation cases. In recent years, at least two North Carolina plaintiffs have obtained multi-million dollar judgments against the paramour. In both of these recent cases the defendant did not appear at trial to defend against the lawsuit, which likely impacted the amount of the award. In cases where the third party defendants the lawsuit, it is more difficult to predict the outcome, especially if the trial is in front of a jury rather than a bench trial by a judge only. Either party is entitled to demand a jury trial in alienation of affection and criminal conversation cases.
The decision of whether to file a lawsuit for alienation of affection and criminal conversation should not be made lightly. The lawsuit is not a one way street. The lawsuit can be very expensive to pursue, especially if the defendant decides to appear and vigorously defend against the claims, as if often the case. The costs include not only attorney’s fees but in many instances additional costs associated with retaining expert witnesses. Plaintiffs should also be prepared to have their marital relationship and personal life put under a microscope. When a plaintiff claims damages related to mental anguish and emotional distress, it usually opens the door for the defendant to get access to the plaintiff’s medical and mental health records. To some, having to turn over sensitive, private mental health information to the defendant simply adds insult to injury. Lastly, in many situations, the defendant has few assets that could be used to satisfy a judgment. All of these factors (as well as others) should be taken into account in deciding whether to file a lawsuit against a third party for committing adultery with your spouse.
In our Podcast, Jaime Davis discusses the potential impact adultery can have on a family law case, as well as potential claims a spouse may have against the third party for alienation of affection and criminal conversation.