Alienation of Affection and Criminal Conversation

[looming large]

I live in Oregon state and starting dating someone who I later found out was married. I broke off the relationship, however resumed a friendship with this person pending his divorce. He also currently resides in Oregon and has for the past six months. His soon to be ex-wife has threatened to sue me for alienation of affection/criminal conversation in North Carolina, where she lives.

He has filed for divorce in Oregon, and at no time prior to his filing for divorce, was I ever in North Carolina. I have spent time with he and his daughter in North Carolina more than six weeks after he filed for divorce and no sexual relations took place during my time there. Do the statutes apply to me since I do not reside in North Carolina and no actions involving our relationship occurred there?

[aaron]

The North Carolina Courts, in Cooper v. Shealy, 140 N.C. App. 729, 537 S.E.2d 854 (2000), found that an out-of-state defendant's phone contacts with her married boyfriend were sufficient contact to justify permitting a lawsuit against her under NC law in a NC court.

The elements of alienation of affections are: (1) a marriage; (2) a genuine love and affection existed between the spouses; (3) the love and affection existing between the spouses was alienated and destroyed; and (4) the wrongful and malicious acts of the defendant caused the loss and alienation of such love and affection. Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641 (1966). While the second element can be met in marriages that are less than stable, the fourth element cannot be met unless the third party's acts are malicious - it is unlikely that the fourth element can be proved absent some evidence that you knew the husband was married, and if a claim is brought your ignorance could be raised as a defense. (Even where there is knowledge, it can be a defense to argue that there was no intent to alienate affections within the marriage, although that's probably a risky defense.)

[looming large]

Thank you for your reply. But what about the criminal conversation part? Is it possible for her to come after me for that if I live out of state and no actions have ever occurred in that state involving me?

[aaron]

The Cooper Court wrote:

However, we note that the issue of determining which state's substantive law is applicable to plaintiff's laims for alienation of affections and criminal conversation is not before us. For instance, since alienation of affections is a transitory tort, the substantive law of the state where the tort occurred is the applicable law. See Darnell v. Rupplin, 91 N.C. App. 349, 371 S.E.2d 743 (1988). Therefore, plaintiff must prove that the tortious injuries, defendant's alienation of her husband's affection and criminal conversation, occurred in North Carolina before North Carolina substantive law can be applied. Id. Nevertheless, we find that North Carolina has jurisdiction to hear this case.

In other words, the question of jurisdiction and choice of law are separate. Cooper suggests that North Carolina may have jurisdiction to entertain a properly plead "alienation of affection" claim, but that if the intercourse occurred exclusively in a different state that North Carolina would decide the case under that other state's laws (and, if that state has no such law, the implication is that there would be no recovery).