Anwyn and Walter Olson link to the latest abuse of two wacky common law torts 42 states have had the good sense to abolish but North Carolina has not: criminal conversation and alienation of affection. The Rosen law firm have a useful article on the topic, and I’d urge you to RTWT. Alienation of affection occurs where (1) the marriage entailed love between the spouses in some degree, (2) the spousal love was alienated and destroyed and (3) the third party’s malicious conduct contributed to or caused the loss of affection. Note that it doesn’t require this third party to have sexual relations, nor romantic involvement of any kind, with the spouse. All it requires is that this person “maliciously” act in a way that causes or contributes to, the loss of love between them. Per Rosen, NC courts have generally presumed such love to exist up until the moment the couple separates, so even if you want to tell a friend of your own sex to finally get up the guts to leave that blankety-blank, and you happen to live in North Carolina (or, for that matter, in Hawaii, Illinois, New Hampshire, Mississippi, New Mexico, South Dakota or Utah), tread lightly. Once your friend physically leaves (or is left by) the spouse, then as a matter of law there’s “no love lost” between them, so feel free to give your friend all the moral support you want but don’t say or do anything that could be construed to corroborate any “malicious” acts that may have preceded the move. And if you do have romantic feelings for that person, think twice about revealing them to that person, and 100 times before revealing them to anyone else, before the divorce is final.

On the other hand, if you are that spouse, you might be thinking to yourself “Hey, I know how to defeat that malice thing. My ex can’t sue me for alienating my own affection, so why don’t I protect my new flame by telling her I’m single? There’s nothing ‘malicious’ about sleeping with someone you didn’t know was married, right?” To which the answer is, “right, but…” and it’s a big but. This brings us to the other wacky tort, criminal conversation (i.e., non-criminal adultery), which merely requires the plaintiff to show that sex between the defendant and the spouse occurred, that a valid marriage existed at the time, and that the action was brought before the statute of limitations has run. Conspicuously absent from this definition is any malice requirement, or any requirement that the defendant knew, or even should have known, about the marriage. So if you think you are protecting your paramour by playing the strategic jerk, you’re not; you’re just being a jerk.

At this point I should remind you that while I am a lawyer, I am not your lawyer. Anyone who finds themselves in this situation is advised to retain competent legal counsel before doing anything that could prejudice his position. And if you think a blog post by a lawyer who doesn’t even practice family law is legal counsel, competent or otherwise, you might want to consider psychological or psychiatric counseling as well (and no, IANAP, but thanks for not asking).

UPDATE: JJV, a fellow conservative who I like but who seems to have an uncanny ability to be wrong about everything, does not disappoint. He does have an interesting point about New Hampshire, though.