A newstory last week piqued my interest as a legal historian, as it implicated a centuries-old form of legal action, one of the “heartbalm torts”, commonly known as “alienation of affection”. Recently, in a court in Pitt County, North Carolina, a wronged ex-spouse, Dr. Lynn Arcara, was awarded $5.8 million dollars against a former friend who had an affair with her (now-ex) husband. The defendant in this action, Susan Pecoraro, had been a close friend of Dr. Arcara, and had been invited to stay with the couple in 2006 at their home in Chapel Hill, North Carolina. Dr. Arcara was several months’ pregnant at the time, and Pecoraro helped decorate their nursery while apaprently making advances on Dr. Arcara’s husband, Russell.

Their resulting affair was discovered by the plaintiff in 2007, which ultimately resulted in the Arcara’s divorce. Dr. Arcara sued her former friend for damages under North Carolina law, the state being one of only a handful that has not legislatively or judicially abolished this archaic cause of action. In a moment reminiscent of 19th century ‘breach of promise to marry’ suits — more on that later– Arcana’s lawyer presented to the court letters and other documents showing that the couple had been happily married before the affair began. The award of $5.8 million is the second highest in North Carolina’s history. One of only seven states where this cause of action has survived, North Carolina has the additional distinction of being the most prolific in terms of volume, handling up to 200 of these cases every year! It is doubtful that the plaintiff will recover, as not only is the award far in excess of the defendant’s ability to pay, but the verdict is not enforceable outside state lines. The defendant therefore remains safely ensconced in Maryland, out of harm’s way, but risks being arrested on a bench warrant should she ever venture into North Carolina. The moral of the story, as Arcara’s attorney rather inelegantly put it, is that “if you want to have an affair, you need to choose someone who doesn’t reside in North Carolina to have it with because you are going to open yourself up to a liability if you do so.”

In order for a plaintiff to prevail in these suits, the common law held that the plaintiff had to show that the marriage had been a loving one; that the spousal love was alienated (i.e., destroyed); and that the defendant was responsible for this alienation, based on a ‘preponderance of the evidence’ standard as is instrinsic to civil suits. Note that nowhere in these elements is intentionality of motive a factor– it need not be the case that the defendant had intended to alienate the married spouses, but merely that his or her acts had been wilfully or intentionally done, and that those acts could reasonably and foreseeably have been predicted to adversely impact the marriage. Thus, the intentionality has to do with the doing of the acts themselves, not with their desired effect.

How can a defendant successfully contest such a suit? Most commonly through a showing that he or she did not know the spouse was married, or that the defendant had not instigated the affair. Other less common defenses could include a showing that the spouses were not lawfully married.

The record for the highest such judgment in North Carolina, incidentally, was reached earlier this year when 60 year-old resident Cynthia Shackleford was awarded a judgment of $9 million dollars against the woman who had “deliberately seduced” her husband, Alan. The moral of the story, in my opinion, is best expressed thus: Don’t whisper ‘sweet nothings’ to someone else’s spouse in North Carolina, or it could cost you dearly!