With thanks to the Administrative Office of the North Carolina courts, and to Stephanie Plotin of the UCLA Law Library, I can report some data on alienation of affections lawsuits in North Carolina: In fiscal years 2000-2007, there were an average of 230 such filings per year -- a bit over 0.5% of the number of all divorces, but about twice the number of product liability lawsuits, and about three-quarters of the number of wrongful death lawsuits.
Unfortunately, the table doesn't have separate categories for other torts, so I can't compare to, say, slander lawsuits and the like. The Administrative Office also stresses that this is an unverified, preliminary report; and one can certainly see how the data might be skewed in various ways, though likely in the direction of underreporting (for instance, lumping it under the general category of "intentional torts") rather than overreporting.
Related Posts (on one page):
- Alienation of Affections in North Carolina:
- My Torts Class, and Alienation of Affections:
- My Fall 2009 Torts Class:
This is a misleading comparison, because North Carolina also follows a minority rule for products liability. NC has not adopted Article 2 of the UCC, particularly as to strict liability for defects. Thus you'd also expect an unusually low number of products liability claims.
The first thing that really SHOULD be noted by students when asking if such a tort should be abolished is that this tort doesn't exist in a vacuum. It is a part of a rather complex set of policy-based family law torts and remedies from which it probably cannot be completely separated. For example, in a state where adultery is not criminalized and all divorce is no-fault, then alienation of affections would be silly to resurrect. In states where all divorce is at-fault, where adultery is a justified cause for divorce, and where other similar remedies exist for other areas such as constructive abandonment, then it seems to me that this tort is a useful piece of policy. I don't think though that judicial abolition of the tort in most cases is a good option as it is one of the FIRST pieces to go in this complex in most states.
I am a fan of abolishing the tort and going to a system where divorce is artificially delayed by streamlined as much as possible. The big issue here is that divorcing couples have a remarkable tendency to fight forever in the legal system, so making it hard to get a divorce and encouraging the airing of dirty laundry in court really does nothing for anyone involved except the lawyers. The issue is once again that this tort doesn't exist in a vacuum and that, particularly if the affair leads to a serious relationship after the divorce, retribution in court is almost certain. At some point one has to ask if having kids raised by parents who fight in the divorce system for all of their lives up until college is in anyone's best interest, let alone the children's.
Now on to the personal bit. My wife and I have 2 kids. Our marriage hasn't always been easy for a wide number of factors of which both of us have our share of blame (no affairs though). A few times we have been genuinely close to divorce, even to the point of having petitions ready to file. Two things have inevitably stopped this process in our case though:
1) The logistical challenges of divorce (in terms of separating living arrangements, even contemplating custody issues since my wife is a foreign national and would in a divorce prefer to return to her home country, etc.)
2) The waiting period. Waiting 3 months to represent yourself in court provides ample cooling off time as well as an incentive to ask "is this what we really want?"
Smart policies IMO to protect marriages should be aimed at maximizing these hurdles. If I could propose changes/reforms I would argue for the following:
1) Waiting period should be 1 year unless by mutual agreement in which case it should be 3 months. This gives divorcing couples incentive to talk things out as much as possible.
2) Default 50/50 custody if parents reside in same town. First parent to move far enough away to make school, etc. a problem would by default lose substantial custody interests.
3) Marital misconduct, including infidelity, and abandonment (both physical and constructive), should be no grounds for divorce, nor should they be causes of action inside a marriage.
4) All related torts and causes for action should be abolished, including alienation of affections, criminal conversation, etc.
The key issue though is that family law is a structure which has, in many states, torts on its periphery. These torts cannot be properly separated from the larger structure, so questions such as whether a tort should be abolished or resurrected have no reasonable answer on a categorical level. The first thing we have to look at is the structure of other elements of this larger framework.
H.B. 1110 both reaffirms the general concept, and limits it.
H.B. 1110
As discussed on the previous thread, the act overrides some recent court decisions which went the other way. Limiting actions to natural persons, for example, prevents suing employers over office affairs and also keeps the business lobby from having a reason to oppose the tort.
North Carolina has a one-year separation period for divorce (In the 1990sm the legislature reduced the period from 18 months and also enacted that isolated acts of intercourse between the spouses do not automatically void the separation.).
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