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Affairs of the Heart: Torts in Family Law

 

What is a Tort?

A tort is not a yummy bakery treat. You are thinking of a tart, which ironically may also be discussed below. But in legal terms, a tort is negligent or bad behavior. Bad behavior that is deemed criminal is punished by the government. Although crimes may be punishable by fines, they might also be punished by incarceration. Bad behavior that allows individuals to sue each other for money damages are categorized as torts. In other words, instead of facing possible incarceration, a person who is sued for committing a tort is being sued for money. This type of lawsuit is discussed in the Old Testament when surviving family members essentially received financial compensation for the wrongful death of the slain loved one. The modern claim is called wrongful death, which is an example of a tort that is also a crime.

A Few Family Law Torts:

Infliction of Sexually Transmitted Diseases

If a person is having sexual relations with a person he or she knows is married, the law imposes a duty to warn the spouse who is the victim of the cheating. Failure to do so constitutes negligent infliction of sexually transmitted disease. This is so because the infected person can assume a married person will have relations with their spouse.

Breach of Promise to Marry

When two people make a contract (i.e., an agreement) to marry, but one party breaches the agreement by failing to go through with the wedding, the one “left at the alter” may be able to sue for breach of the promise to marry. This claim requires that both people are unmarried at the time of the promise. Being separated from a legal husband or wife at the time of the promise to marry makes the promise unenforceable. If one of the engaged parties has venereal disease that has not been cured, there is no legally enforceable agreement to marry. These claims are a way to recoup the money paid for wedding expenses. There is currently no North Carolina case that clearly determines who gets the engagement ring when the anticipated marriage falls apart, but most states say a engagement ring is a conditional gift, becoming a gift only if the condition of marriage is fulfilled.

Defamation, Slander and Libel

Someone who makes false defamatory statements about someone to a third party and “causes injury” to the person’s reputation has defamed him or her. This type of tort includes slander, when defamation is made by spoken communication, and libel, when defamation is made by printed communication. Truth of the allegation made about someone is a defense to this tort, as is marital privilege between spouses. Legitimate allegations about someone in the course of a lawsuit are also privileged, meaning the person who said them can’t be sued for defamation. A good example of this type of allegation is marital fault asserted in an alimony complaint, the document that generates the lawsuit. Mere communication about someone having a sexually transmitted disease is defamation if the person does not have the disease.

Alienation of Affection

This claim is based on a person’s wrongful interference in a marriage that previously had affection between the spouses, regardless of whether there was any sexual intercourse. The person who interfered in the marriage destroyed the affection between the spouses by his or her wrongful and unjustifiable conduct. The person trying to defend this claim may argue there was no affection existing between the spouses, so he or she was not the cause of the alienation of one spouse from the other.

Criminal Conversation

This quaint language is a polite way to say, for lack of a better term, wrongful sexual intercourse. When a person is married, any third party who has intercourse with a spouse can be sued for money damages. This claim is controversial, and it is usually filed together with alienation of affection. Proponents of this tort argue the third party has essentially interfered with the other spouse’s exclusive legal right to sexual intercourse. Those who think this tort is outdated argue it is not in keeping with modern social mores.

See also:

Sex and Slander: Defamation in NC

A Dish Best Served as Cold: Malicious Prosecution

Infliction of Emotional Distress: Does My Divorce Qualify?

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