September 2017

Suing Your Unfaithful Spouse’s Lover

North Carolina is one of only a small handful of states that allows for the filing of a lawsuit and cause of action against your unfaithful spouse’s lover. The North Carolina Court of Appeals recently upheld the ability in some cases to sue the person who had the affair with your spouse. This is called “alienation of affection,” or interference with a marriage, and “criminal conversation,” or adultery, as the basis.

The court of appeals noted, “They further the state’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken.” They added, preventing “personal injuries and societal harms is a substantial government issue.”

The court rejected the argument that the laws are unconstitutional because they violate individual rights to intimate sexual activity and expression with other consenting adults.

So, what are alienation of affection and criminal conversation, and how do they come into play in North Carolina family law matters?

Alienation of Affection

When you bring a cause of action for alienation of affection, you’re suing a third party you believe to be responsible for the demise of your marriage. In most cases, this is a spouse’s lover, but that’s not always the case. In some matters, someone like a therapist or clergy member have advised someone to seek divorce, which falls under alienation of affection.

Alienation of affection cases require proof of elements like:

• There was a marriage with love and affection between spouses to some degree;
• The love and affection were indeed alienated and destroyed; and
• The malicious acts of the defendant contributed to or were responsible for that loss of love and affection.

The standard of proof in these causes of action typically revolves around showing the defendant intentionally engaged in acts that would impact the marriage, not necessarily that they intentionally set out to destroy someone’s marriage.

Criminal Conversation

Criminal conversation is a cause of action that typically accompanies alienation of affection lawsuits, and is a tort that arises from the act of adultery itself. The term conversation is an antiquated reference to sexual intercourse, which is pretty much obsolete except as used in this legal setting. In order for criminal conversation to apply, there must be an actual marriage between plaintiff and the spouse, and there must be sexual intercourse between the defendant and plaintiff’s spouse during that marriage.

Amendments to the Law

Not surprisingly, lawsuits for alienation of affection are hotly debated, which has led to some modifications to the law in recent years. Additional terms under § 52-13 Procedures in causes of action for alienation of affection and criminal conversation include:

• There is no cause of action if the alienation of affection and criminal conversation occur after the plaintiff and plaintiff’s spouse physically split
• An action shall not be commenced more than three years from the last act of the defendant giving rise to the lawsuit
• You can only sue a natural

Understanding Your Legal Rights

Alienation of affection and criminal conversation cases are not always applicable in every situation, but it’s important you understand your legal rights and available options. If you think your spouse may be cheating, contact the experienced family law attorneys at Powers Landreth PLLC today for a consultation.

Resources:

charlotteobserver.com/news/local/article171544957.html

ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_52/GS_52-13.pdf

How Does North Carolina Deal with Prenuptial Agreements?

Commonly referred to as prenuptial agreements, premarital agreements are made between potential spouses before marriage. These agreements outline certain rights and responsibilities for each spouse, such as the division of property upon death or divorce.

In Chapter 52B of the North Carolina General Statutes, we find the Uniform Premarital Agreement Act. This act outlines the framework for premarital agreements in North Carolina.

Under Sections 52B-3 and 52B-4, we find the requirements for premarital agreements in North Carolina. First and foremost, premarital agreements must be written and signed by both spouses. Without a writing signed by both spouses, premarital agreements are not valid. Additionally, even if one spouse does not receive any benefit under the agreement, it is still valid and enforceable.

Similar requirements exist for amendments to or revocation of a premarital agreement. Both spouses must execute and sign a writing outlining the changes or elimination of the agreement. Even in the absence of consideration, where one spouse does not receive any benefit, the amended or revoked agreement can be valid and enforceable.

North Carolina outlines eight different areas under which prospective spouses can create a premarital agreement. Premarital agreements in North Carolina are allowed to govern:

1. The rights and obligations regarding property owned by either or both spouses;
2. The right to conduct real estate transactions (purchase, sale, transfer, mortgage, etc.) concerning property;
3. The division of property upon certain marriage-ending events, such divorce or death;
4. The right to change or remove obligations concerning spousal support;
5. The establishment of estate planning mechanisms (wills, trusts, etc.) to carry out all or part of the agreement;
6. The control and ownership of the death benefit from a life insurance policy;
7. The right to choose which legal system governs the agreement; and
8. The ability to create other conditions, so long as those conditions conform to the law and public policy.

There is an important exception. The parties to a premarital agreement are not allowed to prevent children from receiving child support. That is one area that is off limits for premarital agreements in North Carolina.

Do You Need Legal Counsel from an Experienced Family Law Attorney?

Whether you are dealing with a prenuptial agreement, divorce or other aspects of family law, there is a lot to consider. Personal needs are balanced against family wellbeing. With so much on the line, it can difficult to know where to start. That is where an experienced family law attorney can make a true difference, explaining your rights under the law and planning an appropriate strategy. That way you will be in the best position for a successful outcome.

Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience in matters of family law. If you have questions about a prenuptial agreement, divorce or other aspects of family law, please feel free to contact us at your earliest convenience. We will work tirelessly to help you overcome any obstacles in your path. The attorneys at Powers Landreth PLLC are available 24/7 by phone at 704-342-4357, by fax at 980-209-0029 and online by completing a simple form.

Resource:

ncga.state.nc.us/gascripts/Statutes/StatutesTOC.pl?Chapter=0052B