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He Said, She Said……but she lied!

Dear Carolyn:

My soon to be ex-wife lied under oath in Guilford County Court for personal gain (money). She over-stated expenses and I am paying P.S.S. Can I charge her with perjury and sue her?

Thanks!

-P.J.

Carolyn Answers….

Dear P.J.:

Unfortunately, this is a frequently asked question in family law and divorce cases.  It seems that, almost always, someone thinks one side or the other is lying.  For all readers’ information, P.S.S. is Post Separation Support, a temporary form of alimony.  The question is as follows:   what can you do about the false statement?

This answer will first discuss your allegation of perjury.  Then, secondly, the answer will discuss possible civil remedies and suggestions for your divorce.

          First, perjury is a very serious crime under General Statute 14-209 and is a Class F Felony. Perjury is “a false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question.” State v. Bright, 301 N.C. 243 (1949).  Further, “it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances.” State v. King, 267 N.C. 631 (1966).

In my experience, I have found, practically, that District Attorneys (prosecutors) are reluctant to prosecute perjury cases in divorce situations.  However, there is a case in 2007, which is significant, involving a child support matter: State v. Denny, 361 N.C. 662 (2007).  In Denny, a Father appeared in court for failure to pay child support.  The Father filled out an Affidavit of Indigency to obtain a court-appointed attorney for free, which would be to the financial benefit of the Father. On the Affidavit of Indigency, the Father wrote “zero” on the line asking about real estate assets.  Later, someone uncovered that the Father owned a legal title to real estate with his girlfriend.  The Father was prosecuted for perjury; the North Carolina Supreme Court affirmed the conviction.

P.J., if you have the two witnesses or the one witness and otherwise corroborating proof, you should discuss your case with law enforcement and the District Attorney’s office.  My guess is that you will not likely be successful because you are in a divorce, but the State was successful against Mr. Denny in a child support matter.  We would need to know more about your specific facts, and why you think perjury occurred.  If you still think you have perjury after reading this response, please write again and include more facts.

Your second remedy is the civil court action you are currently in for Post Separation Support.  The good news for you is that Post Separation Support (P.S.S.) by definition is temporary.  The judge likely set a fixed term for the P.S.S., such as one year or eighteen months.  Alimony is the next step and that is where you have the opportunity to be prepared for the lies.  You should do extensive discovery from your ex on her income and expenses from her Affidavit of Financial Standing, which she is required to file for her Alimony claim.  In Guilford County, certain documents must also be given to you with the Affidavit of Financial Standing, but these documents will not be sufficient to deal with a liar.  You will have to ask additional questions (called interrogatories) and request additional documents (called a production of documents).  You can even require your ex to answer questions verbally, under oath, in a deposition.

Finally, if the fraud and misrepresentation to the court is clear and provable, you may have a Rule 60, which is a Motion for Relief from Judgment or Order, if filed within one year of the P.S.S. Order. Your attorney will need to strategize on whether you should file under Rule 60 or simply pursue the alimony, or perhaps both.  I do think you are going to need an experienced family lawyer to help you.