North Carolina Court Allows Alienation of Affection Case to Move Forward

Board Certified Family Law Specialist Matt Arnold answers the question: “Does adultery affect my divorce case?”


In many places, if a marriage ends due to an affair, the innocent spouse may be left with anger and hurt feelings, but will otherwise have no recourse. That is not the case here in North Carolina, one of the few remaining states to recognize the right of an innocent spouse to bring claims for alienation of affection or criminal conversation. Though the cases are relatively rare, they still occur each and every year, with some, like a recent case out of Winston-Salem, grabbing headlines.


Broken-Heart-Charlotte-Mooresville-Divorce-Lawyer-300x169The case in Winston-Salem is an important one because it grapples with the legality of the alienation of affection claim. A judge in Forsyth County who heard a case directed at the lover of a man’s former wife threw out the claim, arguing that the law was unconstitutional. The North Carolina Court of Appeals disagreed, and just this week made clear that such claims are allowed under North Carolina law.


The case began when Marc Malecek discovered that his wife, a nurse, had an affair back in 2015 with Dr. Derek Williams, a doctor at the hospital where his wife worked. The couple’s marriage unraveled and Marc decided to pursue the doctor for damages, filing an alienation of affection lawsuit. The doctor challenged the suit, arguing that the U.S. Supreme Court made it clear in previous rulings that adults ought to be allowed the liberty to make their own decisions as it relates to intimate sexual acts. A judge in Winston-Salem agreed, throwing out the alienation of affection lawsuit and arguing that the law allowing such claims infringed on citizens’ rights to free speech and free expression. In this case, the right to express their intimate sexual desires with other consenting adults.


The state Court of Appeals voted unanimously to reinstate the lawsuit, arguing that the lawsuits should be allowed because they help remedy injuries suffered by an innocent party in the event of infidelity. The lawsuits also help protect the “promise of monogamy” that the court believes goes hand-in-hand with marriage. Though the Court of Appeals upheld the law, they did not do so without criticism. The panel recognized that the law was created initially out of a sense of misogyny and paternalism towards women and is out of step with modern times in many ways. The Court went on to note that today these lawsuits are typically to gain leverage over the other party in a divorce, and not about compensating for harm suffered.


For such a case to move forward, the innocent party needs to show that he or she suffered damage due to the actions of their spouse’s lover. Given the incredible costs and financial harm associated with a divorce, this is usually not very difficult to do. Experts say that in North Carolina there are about 200 cases each year over alienation of affection, likely a small fraction of the number of cases involving infidelity. This means that while these cases may occasionally grab headlines, it is fairly rare for a party to actually bring suit against a former spouse’s lover after an affair.


Those who pursue such lawsuits stand to collect damages if they are successful. In the most famous example of this, back in 2011 a woman was awarded $30 million from the current wife of her ex-husband. Though the many may help smooth over financial troubles post-divorce, it is important to understand that no lawsuit can fix a broken marriage or repair a broken heart. At best, these alienation of affection claims can ensure you receive a bit of money to compensation you for the heartbreak.


If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.


About the Author:

ARNOLD & SMITH LAWMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.





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