In North Carolina, adultery can be used as a basis for divorce. Also, North Carolina recognizes “alienation of affection” and “criminal conversation” as causes of action for an innocent spouse to sue the paramour of the other spouse. One may ask, what are the possible legal implications for a spouse who chooses to date after a legal separation?
ADULTERY
North Carolina used to consider adultery as a class 2 misdemeanor, and opened people up to criminal prosecution. N.C.G.S § 14-184 stated, “If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.” 
However, in 2006 this statute was ruled as unconstitutional and the State of North Carolina has not replaced the statute with another. Therefore, as of 2006 “adultery” is no longer illegal in the State of North Carolina.
However, adultery in a marriage can lead to some less than favorable results for an adulterous spouse. Proof of adultery by one spouse in a marriage can affect the alimony the adulterous spouse has to pay to the innocent spouse after a divorce is finalized.
Alimony payments are payments made by one spouse to the other dependent spouse after the two are legally divorced. Alimony payments occur when one spouse is financially dependent on the other spouse during the duration of the marriage and the court determines, after considering all relevant factors, that it would be fair and just for the supporting spouse to pay for the support and care of the dependent spouse.
One factor that courts use to determine whether the supporting spouse should pay the dependent spouse alimony is whether the supporting spouse committed adultery during the duration of the marriage. Once the spouses are legally considered separated, North Carolina law would not consider extra-marital relationships as a factor to show the need for alimony payments.
Could dating post-separation affect alimony payment amounts?
The court may look at post-date of separation relationships as evidence that either spouse committed adultery prior to the marriage. The post-separation relationship with a third-party does not directly affect alimony amounts, but it could lead the court to believe that there was an extra-marital affair that took place prior to the separation, which would affect the alimony amount.
CRIMINAL CONVERSATION
Contrary to what the name suggests, criminal conversation is not a crime in North Carolina, but is a civil lawsuit involving the spouse of a person who committed adultery during the marriage and that spouse’s extra-marital lover. Through criminal conversation, the spouse of the adulterer has the option to sue the extra-marital lover for monetary damages. A criminal conversation claim may only be brought against a third-party individual to the marriage and cannot be brought against a business entity.
In order for the innocent spouse to sue the lover of their spouse, the innocent spouse must show to the court with “51% certainty” that the adulterer had an extra-marital affair during the life of the marriage. The ways that the spouse can show that the extra-marital lover had an affair with the adulterer is by hiring a private investigator who will investigate the adulterer’s activities. If the spouse shows by 51% certainty:
- He/she was legally married to his/her spouse,
- The spouse had sexual intercourse with another person outside of the marriage,
- That sexual intercourse took place during the life of the marriage, and
- The legal action is filed against the third-party within three years of the adultery
then the spouse could have a claim for criminal conversation, and could receive monetary compensation from the third-party for the emotional and mental pain and suffering that the adultery caused to the marriage.
Can dating a spouse who is legally separated lead to a lawsuit for criminal conversation?
The North Carolina Court of Appeals held in 2001 that a claim for criminal conversation against a third-party paramour is not barred by the fact that the spouses are legally separated. The court stated in Johnson v. Pearce, criminal conversation is based on the fact that the parties are married at the time and is based on the policy that spouses have the legal right to exclusive sexual intercourse with each other even if they are legally separated.
What defenses are available for a third-party paramour for criminal conversation?
The only defenses that are available for a paramour for engaging in sexual intercourse with a separated spouse in a criminal conversation lawsuit is that the spouses were either legally divorced or the innocent spouse provided consent to the extra-marital sexual intercourse.
ALIENATION OF AFFECTION
Like criminal conversation, alienation of affection is a civil lawsuit that an innocent spouse can bring against a third-party (not just a paramour). However, unlike criminal conversation, alienation of affection does not require the innocent spouse to show that actual sexual intercourse took place between the adulterous spouse and a third-party during the marriage. The purpose of an alienation of affection claim is to allow an innocent spouse to sue a third-party for leading to the end of a marriage. In order for an innocent spouse to win an alienation of affection claim he/she must show by at least 51% certainty that:
- The spouses shared a marriage that contained genuine love and affection;
- That love and affection has been destroyed;
- The behavior of the third-party led to the destruction of that love and affection;
- The innocent spouse has been damaged by the third-party’s behavior; and
- The alienation of affection lawsuit is started within three years of the end of the third-party’s behavior.
Could dating a spouse who is legally separated lead to a lawsuit for alienation of affection?
A claim for alienation of affection is not necessarily barred by the legal separation of a married couple. However, a claim for alienation of affection requires the innocent spouse to show that the actions of the third-party to the marriage led to the destruction of the love and affection that existed in a marriage. Therefore, the fact that the married parties took legal action to become legally separated would likely indicate to the court that there was no genuine love and affection that existed between the married couple at the time of the actions of the third-party.