I suppose so–there are couples that live on opposite coasts but the bond of marriage isn’t dissolved by this distance. It depends on WHY you live in different houses–did you throw your spouse out? Did he/she leave? My guess is that you are most interested in the criminal conversation law, not alienation of affection. While you are married neither of you are “allowed” to have an affair in NC, unless you both agree that it is OK to do so. It sounds to me like you are building a case for punishing the offending spouse. CC is a very difficult case to try, and it is very expensive, with only a very modest outcome unless you are rich. My advice is, if you want to be divorced, take your half of the stuff and move on. Punishing someone takes an enormous amount of energy and cash.
Thanks to the efforts of the person writing the prior post. I would concur with the suggestion of using one’s energy to move forward in positive ways as very good advice. It is important to understand one’s legally protected marital interests if only to help make educated decisions.
NC law Alienation of affections requires that the plaintiff prove that there was a marriage with love and affection; that the love and affection was alienated and destroyed; and that the defendant, with malice, caused the loss of love and affection. The spouses do not have to be living together at the time of the alleged misconduct in order for the plaintiff to establish the element of a marriage with love and affection. The rationale is that even though the spouses are living apart, there is always a chance of reconciliation, and if the defendant’s conduct has ended that chance, the action remains.
NC law provides that the only necessary elements for criminal conversation are marriage and sexual intercourse between the defendant and the Plaintiff’s spouse. The law recognizes only the running of the statute of limitations or the plaintiff’s consent or connivance as defenses. By recognizing consent and connivance as defense, the law refuses to compensate the plaintiff who had no interest that was violated. A defense of connivance would require more then proving that the plaintiff forgave the defendant or continued to live with the spouse after discovering the conduct. The proof required by defendant would be that before sexual intercourse, the plaintiff either encouraged the conduct or at least approved it.
See Sebastian v. Kluttz, 6 N.C. App. 201, 208, 170 S.E. 2d 104 (1969) for a good summary of many of the points of law involved in both alienation of affections and criminal conversation.
4101 Lake Boone Trail
Raleigh, NC 27607
919.787.6668 main voice
301 McCullough Drive
Charlotte, NC 28262
704.644.2531 ext. 100
My husband and I live in California but his former mistress resides in North Carolina. May I still sue her even if I/We don’t live in NC as well?
Of course. Be prepared to spend a lot of money (you will have to fly back and forth to NC for the hearings). I really think that in the end you will do more damage than good, but if you feel you need to exact punishment, have at it–but at least consult with an attorney in NC so you know what chances you have of winning.
Greetings. If any part of the affair happened in NC then you may be able to sue her. Thank you.
Janet L. Fritts
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
If a couple are living apart but not legally separated, can a spouse allege alienation of affection?
Would a judge consider if the spouse involved with the third party had numerous affairs throughout the marriage?
Would a judge take into consideration if the spouse alleging alienation of affection also had an affair during the separation?
Any advice on finding a lawyer to defend an allegation of alienation of affection?