Although the name suggests that a crime has been committed, a “criminal conversation” action is not a criminal case. Instead, it’s actually a civil case, brought by a plaintiff (the party that was allegedly wronged) in a civil court. This is very different from a criminal case, which is tried in a criminal court by the state or some other public official. Defendants that have committed criminal conversation will not face criminal penalties or the possibility of jail time.
Criminal conversation requires solid proof that your spouse engaged in sexual relations with the third-party defendant. Most commonly, evidence of adultery is obtained by hiring a private investigator to photograph or videotape the affair. The innocent spouse seeking damages must prove the following three elements:
the innocent spouse is legally married to the adulterous spouse
sexual intercourse took place between the adulterous spouse and a third-party individual (you can’t sue a business, such as a “gentlemen’s club" for criminal conversation)
the sexual intercourse occurred during the marriage, not after separation, and
the adulterous act(s) took place within North Carolina’s three-year “statute of limitations” (which means the lawsuit must be filed no more than three years from the last act of adultery).
There is only one defense to criminal conversation; the spouse who was cheated on encouraged or consented to the adulterous affair before it took place.