Alienation-of-affection law changes

Affairs that take place during a couple's period of separation no longer grounds for lawsuit

By: By James Romoser | JOURNAL RALEIGH BUREAU
Published: October 05, 2009

RALEIGH --

In courtrooms, it's called "alienation of affection" or "criminal conversation."

In love, it's called cheating.

Whatever you call it, the opportunity to sue over it just got narrower.

A new state law, which went into effect last week, limits the circumstances in which a spouse's extramarital lover can be sued.

Under the new law, if a married couple is separated, any extramarital affair that goes on during the period of separation is no longer grounds for a lawsuit.

Critics of the change say that it removes a deterrent to adultery and weakens a long-established public policy meant to protect the sanctity of marriage.

Supporters say that the concept of "alienation of affection" is a relic of a time when women were considered the property of their husbands. Nowadays, these lawsuits are often used by one spouse to harass the other spouse through the court system or to try to gain leverage during a messy divorce.

One such lawsuit was at the heart of the case of Dr. Kirk Alan Turner, the Clemmons dentist who was accused of murdering his wife. Turner was acquitted in August by a Davie County jury, which found that Turner stabbed his wife to death in self-defense.

Before she died, Jennifer Turner had filed an alienation-of-affection lawsuit against Tondja Woods Colvin, the woman with whom Kirk Turner was having an affair. During the murder trial, prosecutors argued that the lawsuit was part of Kirk Turner's motive for killing his wife.

Jennifer Turner's lawsuit against Turner remains in effect, and depositions are scheduled.

"People should be accountable for their actions," said David Freedman, a Winston-Salem attorney whose firm represents the estate of Jennifer Turner. "The lawsuits help maintain the sanctity of marriage, and there are consequences both to the spouse who cheats -- when there's alimony -- and there's consequences on the person who cheats with the married spouse as well."

North Carolina is one of only a few states that still recognize lawsuits on the basis of alienation of affection. Hundreds of such lawsuits are filed each year statewide. The lawsuits allow a plaintiff to ask for monetary damages from a third party on the basis that the third party contributed to ending the marriage between the plaintiff and his or her spouse. "Alienation of affection" is a general term that can encompass any number of actions, but it almost always includes "criminal conversation" -- the legal term for extramarital sex.

Juries sometimes award six-figure or even seven-figure verdicts in favor of the plaintiff.

In the past, lawsuits over alienation of affection or criminal conversation could be filed regardless of when the extramarital sex occurred. But now, once a married couple formally separates, a third party cannot be sued for any actions that occur during the separation period.

The timeframe is important because North Carolina law requires a married couple to separate for one year before getting a divorce. Some conservatives argue that, by eliminating the possibility of alienation-of-affection lawsuits during that separation period, the state is in some sense giving people a license to cheat.

"To abolish the cause of action for alienation of affection after that point of separation pretty much guarantees that the couple won't reconcile, because it takes away any consequence for infidelity in the relationship," said Tami Fitzgerald, who lobbied against the change in the law for the Christian Action League.

Other legal experts disagree. Suzanne Reynolds, a law professor at Wake Forest University and an expert on family law, said there is no evidence that states that recognize alienation-of-affection lawsuits have lower rates of adultery. The possibility of such lawsuits, she said, has no deterrent effect.

"People having affairs don't stop and think, ‘Hmm, am I in a state that recognizes alienation of affection?'" Reynolds said. "It's just ludicrous."

In many cases, she said, alienation-of-affection lawsuits only serve to cause further conflict within a family.

"Once Dad brings a lawsuit against Mom's new person in her life, the whole atmosphere is so toxic, it might mean that one child kind of defends Mom and one child kind of defends Dad. It's very disruptive to families moving on after a breakup," Reynolds said.

"All the sociology of families that break up suggests that they break up for reasons other than third parties. The third party is the symptom, not the cause."

jromoser@wsjournal.com

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