Case Law Development: North Carolina Supreme Court Upholds Alienation of Affection’s Claim – Separation Does Not Trigger Running of Statute of Limitations

The issue in Mccutchen v.  Mccutchen  was whether the accrual of a cause of action for alienation of affections occurs as a matter of law on or before the date a married couple separates. The North Carolina Supreme Court held that the claim accrues whenever alienation is complete, regardless of the date of separation, and that the determination of when alienation occurs is generally a question of fact for the jury. The lower courts had held that the plaintiff's cause of action for alienation accrued by the date of their separation and was thus barred by the state statute of limitations.  The court stated that North Carolina’s public policy, which within reason favors maintenance of the marriage, militates against the application of any procedural rule that forces a spouse to file any action which tends to sever the marital relation before that spouse is really desirous of pursuing such a course.

The record indicated that although the couple separated on 9 September 1998, the husband expressed his desire to return to the marriage multiple times between October 1999 and September 2000 and asked plaintiff not to take legal action during that time. The couple purchased a car together in May 1999, following the husband’s indication that he had broken off his relationship with defendant. Plaintiff and husband also maintained joint finances after their separation. Additionally, they participated in marriage counseling from July 1998 to February 2001. During their last counseling session, husband told plaintiff “he was not heading toward divorce.” In fact, husband did not file for divorce until more than a year after the date he was legally permitted to do so under state law.  The slip opinion in McCutchen v. McCutchen, filed January 27, 2006, can be found here (last visited January 27, 2006, reo).