Cheating, or adultery as it is referred to in the legal context, is one of the more challenging problems that can arise in a marriage, and often it is one of the factors associated with the decision to separate or divorce. In Episode 6, host Jaime Davis discusses the potential impact adultery can have on a family law case, as well as potential claims a spouse may have against the third party for alienation of affection and criminal conversation.
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Jaime Davis: Welcome to Episode 6 of “A Year and a Day.” I’m your host Jaime Davis. In Episode 5, I discussed the topic of parenting coordinators with fellow family law attorney and parenting coordinator Katie King. In this episode I will discuss what impact, if any, cheating has in the context of the family law case. Cheating, or adultery as it’s often referred to, is one of the more challenging problems that can arise in a marriage, and often it is one of the factors associated with the decision to separate or divorce. As a divorce attorney, there are several signs I often see that may indicate a spouse is cheating. Note that these signs alone and collectively do not constitute concrete evidence of an affair, and you need actual facts to substantiate a legal allegation of adultery. But if you suspect such behavior you may want to consider and then follow up on these signs.
First and foremost, the spouse suspected of cheating often exhibits a sudden change in behavior. If he or she has acted a certain way throughout the marriage, most likely these actions are not an indication of cheating; but if he or she suddenly begins engaging in behavior that is out of character, this change in behavior may be an indication of infidelity. Excuses to be away from the home and family activities can also be an indicator of infidelity. If your spouse suddenly has to work a lot of overtime for no apparent reason, or is scheduled to go on multiple business trips when he or she does not normally travel for work, he or she may have a paramour waiting in the wings. Being overly protective of his or her cell phone or excessively using the Internet and social media can also be an indication of cheating. If your spouse has begun leaving the room to take phone calls, suddenly has a passcode on his or her phone and is constantly clearing his or her Internet browser history, he or she may be cheating.
If you ask to use your spouse’s cell phone, and he or she makes up an excuse as to why you can’t use it, or your spouse watches you like a hawk while you are using it, there may be a problem. Changes in physical appearance or sex drive may also be indicators that your spouse is having an affair. New hairstyles, new clothes or a sudden obsession with going to the gym or losing weight may mean there is a third party in the picture. The lack of interest in sex may also mean that your spouse is cheating. When a person is engaging in an affair, he or she may act repulsed by the touch of his or her spouse. Small acts of affection such as hugs or kisses or even placing your hand on your spouse’s knee may result in your spouse pushing you away from him or her. Your spouse may also try to initiate arguments with you for seemingly no reason at all. In most cases when you confront your partner with accusations of cheating, he or she may deny it and make you feel bad for not trusting him or her. Or worse, may insinuate that you are the one who is being unfaithful.
So, if you suspect your spouse is cheating, what can you do? Well, evidence of adultery can be crucial to your case if you or your spouse has a potential alimony claim. In North Carolina, a dependent spouse who commits adultery is barred from receiving alimony whereas a supporting spouse who commits adultery is required to pay alimony. Evidence of adultery or other marital misconduct occurring after the separation can only be used to corroborate evidence of marital misconduct occurring during the marriage and prior to separation. Thus, if you suspect your spouse may be cheating you need to gather this evidence before either you or your spouse moves out of the home. One way that you can collect this evidence is to hire a private investigator to assist you.
In addition to hiring a PI, a good source of information to collect with regard to your spouse’s extramarital activities can be emails. However, while electronic evidence of marital misconduct can be very important to your case, remember that there is a right way and a wrong way to go about collecting your evidence. If your spouse uses a computer to which you know the password you may, under certain circumstances, be able to access his or her emails. However, beware that it is illegal to obtain information by installing a keylogger, a keystroke device, or any other spyware program on your spouse’s computer. If you illegally intercept your spouse’s emails, not only will your evidence be inadmissible in court, your spouse may also have a claim against you for wiretapping. The same goes for recording your spouse’s telephone or other conversations. North Carolina is a one party state, meaning that only one party to the conversation has to consent to its recording, and you of course can be that party if you are in fact participating in the conversation. You can’t, however, install a device on your home phone or your spouse’s cell phone that records every incoming and outcoming phone call. If you did that, those actions may be considered wiretapping.
So, we’ve talked about how adultery can impact an alimony case, but can it impact any other domestic claims? The answer is maybe. Marital misconduct, including whether or not a spouse cheated, is typically not relevant to a claim for equitable distribution which is the claim for property division in North Carolina, with one exception. If that marital misconduct is financial in nature, it might be relevant. So for example, if a spouse is spending money on a boyfriend or a girlfriend, in those cases the affair can be relevant to the extent an argument can be made that the funds spent for the nonmarital purpose – obviously spending money on an affair is not something that is, you know, for the purpose of the marriage – if you can argue that that is happening, then you can try to get those funds brought back into the marital estate as if they still exist, and ask that they be distributed to the spouse who used them. So, in that respect adultery can be relevant to an equitable distribution claim, but it’s not the act of adultery per se.
It’s more where marital resources have been spent on a third party that should not have been spent. Um, adultery is also typically not relevant to child custody claims except in very limited circumstances. If an argument can be made that the cheating spouse is spending significant amounts of time with the affair partner rather than spending time with the children, or if the spouse is engaging in reckless behavior, maybe he or she is meeting strangers online and bringing these people around the children; then at those instances, evidence of the affair might be relevant to a determination of what’s in the best interests of the children. But typically, in the context of a regular family law case, whether or not a spouse had an affair is only gonna be relevant to the alimony claim and whether or not someone may be entitled to it, or whether or not they have to pay because they’ve had an affair.
So, we’ve talked about how adultery can impact a person’s claims with his or her spouse, but can adultery give rise to any claims against a third party? Maybe the person they were having the affair with? Is it possible to sue that person? And the answer is, yes. When a spouse learns that her husband or his wife is involved with another person and is committing adultery, the impact can be devastating, and when the adulterous spouse leaves the family, that devastation is intensified. The feelings of rejection, anger, grief, humiliation as well as possible loss of financial support, illness such as depression, and other factors are considered a personal injury in North Carolina whose public policy is against the interference of a third party in a marriage. North Carolina is actually among a handful of states – I believe there are six now – that allow compensation in appropriate cases where third-party interference has effectively destroyed a marriage.
These lawsuits involve claims for alienation of affection and criminal conversation. Alienation of affection is a cause of action that allows a spouse to sue the affair partner of his or her spouse and to potentially recover money damages. In order to be successful on a claim for alienation of affection, the plaintiff must be able to show that 1) he and his spouse were happily married, and that a genuine love and affection existed between them; 2) that this love and affection was alienated and destroyed; and 3) that the defendant was the cause of the destruction of the love and affection. It was the acts of the defendant that led to the affection between the plaintiff and his spouse being destroyed. A typical defense to actions for alienation of affection is that there was no genuine love and affection existing in the marriage at the time that the spouse became involved with the affair partner. Typical evidence that you will see in these cases to defend against alienation of affection claims are that the spouse who had the affair may be engaged in a prior affair.
The second cause of action that can be filed against the affair partner of a person’s spouse is criminal conversation. The name may be a little confusing. It’s not an actual conversation at all; it’s actually an act of sex. Unlike alienation of affection, a cause of action for criminal conversation does require proof of adultery between the defendant, who we’ve been calling the affair partner, and the plaintiff’s spouse. In order to succeed on a claim for criminal conversation, you only have to prove that the third party had sex with your spouse before the two of you were separated. So, how do you prove adultery? It is going to be the rare case that you actually catch your spouse in the act of committing adultery with a third party. And so, how do you prove it?
In North Carolina, you need to show what’s called inclination and opportunity. What that means is that you have to be able to prove to the court that your spouse had an inclination for a certain person. You can show inclination through text messages, emails, any other sort of document or picture that shows that your spouse had an affinity for a certain person. Opportunity is where a PI report can be helpful. If a PI is able to get a report of two people staying in a hotel room overnight, there is the opportunity that they could have committed adultery. They may try to claim that they were playing board games or watching TV, but coupled with evidence of inclination (perhaps racy emails between the two of them), the fact that they stayed together overnight in a hotel is probably going to be enough to show that adultery was committed.
In North Carolina, the statute of limitations for both alienation of affection and criminal conversation is 3 years. The statute begins to run from the last act of the defendant giving rise to the cause of action. In addition, the acts of the defendant giving rise to an action for alienation of affection or criminal conversation must occur before the plaintiff and his or her spouse physical separate with the intent that the separation be permanent. What that means is that if you have evidence of adultery that occurred after separation, that is not going to be good enough to sustain actions for alienation of affection and criminal conversation. What it is good for is to corroborate any evidence that you have that these acts occurred before the date of separation as well. It’s also important to remember that 3 year statute of limitations. What that means is that if more than 3 years passes, you no longer have the right to file these causes of action.
So if it’s something that you are interested in doing, you need to pay attention to the timing of the claim. The possibility of realizing a sizable damage award in North Carolina based on these causes of action remains. The potential size of a favorable verdict varies depending on multiple factors including the length of the marriage. How egregious was the defendant’s conduct? Did the folks have sex in the marital home? Did they have sex in the marital bed? Over what length of time did the affair occur? Was it a one night stand? Was it an affair that lasted for years? Also, the conduct of the plaintiff during the marriage is relevant, and actual damages such as medical or psychological treatment costs and loss of income are also relevant. In order to prove damages in your alienation of affection case, you will likely need testimony from an expert who can help calculate what the cost is to you in terms of, let’s say, income from your spouse if you were a stay-at-home spouse and your husband or your wife was the spouse primarily responsible for earning the family’s income, and you are now separated and have lost that income because of the actions of the third party. You may be able to claim that as a damage in your alienation of affection case.
It’s also important to remember that not every case of alienation of affection or adultery is going to merit bringing a claim. When deciding whether or not you want to file a claim against your spouse’s affair partner, you need to consider not only the underlying facts of your case, but also whether the potential defendant has sufficient assets from which to collect a judgment if you are successful. It costs money to file these lawsuits, and if the defendant does not have any assets from which you could hope to collect a judgment, it may not make sense to spend the money to file the claim. In many cases, it’s just not cost-effective to file because the potential defendant is judgment-proof.
I hope you all enjoyed this episode of “A Year and a Day.” If you have any suggestions for future episodes, I would love to hear from you. You can email me at jdavis@divorceistough.com. Also, if you liked what you heard today, please leave us a review on iTunes. As a reminder, while in my role as a lawyer my job is to give folks legal advice, the purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions, before you take any action, you should consult with a lawyer who is licensed in your state.
