North Carolina Divorce Lawyers Blog

Articles Posted in Alimony

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Dear Carolyn,

My husband is having an affair with his secretary and I want to get that woman.  I kicked him out of our home on New Year’s Day when he made an excuse that he had to go by the office for something (something? Right?), and my detective caught them red-handed.  I hear about alienation of affection.  Do I qualify?  How much do you think I’ll get?

 

Carolyn Answers:

While you need to have a family lawyer go over your evidence, you may have a claim for both criminal conversation AND alienation of affection against the secretary.  Alienation of affection requires (1) that you and your spouse had a genuine marital relationship; (2) that your spousal love was destroyed; (3) that the secretary caused the breakup of the genuine marital relationship; and (4) that you have damages.

Criminal conversation does not have to do with any crime we actually punish today. The requirements for criminal conversation are two-fold:  (1) sex (2) with someone’s spouse.  That’s it.

No one can really say how much you might get. Juries generally decide these issues, and juries can really vary and view these issues differently.  It is attention-grabbing that there have been some very large awards in North Carolina reported in both the North Carolina Supreme Court as well as the North Carolina Court of Appeals and literature.

Affairs also can affect alimony, as in the question below:

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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.

 

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.

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In Part 1, we discussed that proving cohabitation in North Carolina is not an easy task. There have been multiple North Carolina Court of Appeals cases where the dependent spouse and new flame had been dating for years, were blending finances, were vacationing together, and living together as much as five days a week; yet the Court found there was no cohabitation. The most important thing to keep in mind when trying to prove cohabitation to the court is your evidence.

When the Court reviews the evidence of cohabitation, it will engage in a two-part test. If the objective evidence of cohabitation does not conflict with other evidence, the court does not have to consider the subjective intent of the dependent spouse and new romantic interest. However, if there is conflicting objective evidence, then the Court must look to the subjective intent of the dependent spouse and new romantic interest. Bird v. Bird, 363 N.C. 774, 688 S.E.2d 420 (2010).

Examples of objective evidence of cohabitation includes externally verifiable phenomena, such as bank statements in both parties’ names, joint lease agreements, joint utility bills, cell phone records and text messages showing communications between the parties, emails between the parties alleged to be cohabiting, photographs of the parties together, or investigative reports detailing the movements and actions of the parties alleged to be cohabiting.

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If you are going through a separation and divorce in North Carolina, one topic that always arises is the dreaded “A” word: Alimony. No one wants to be responsible for supporting their soon to be ex-spouse, and if they are going to be responsible for that support, they want to know what can make the obligation (a.k.a. nightmare) end.

In North Carolina, several circumstances will terminate the alimony payments: the death of the supporting spouse, the death of the dependent spouse, or the remarriage or cohabitation of the dependent spouse. The death of either party or the remarriage of the dependent spouse are pretty clear in their definitions, but there is some confusion about what exactly is considered cohabitation. Although statute defines cohabitation, the facts and circumstances of each case determine whether cohabitation has truly occurred.

A discussion of the elements of cohabitation follows, but at the outset, it is important to understand the reasoning of why cohabitation terminates Alimony. It may seem that it is to punish the dependent spouse or to keep the dependent spouse from having a dating life after their marriage ends, but this is not the case. The North Carolina Court of Appeals in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015) explained that terminating alimony due to cohabitation is not punishment of the dependent spouse, but rather is a financial consideration. The Court reasoned that if the dependent spouse has entered into a serious relationship that implicates their finances, they could be avoiding marriage in bad faith to keep the alimony coming. With that in mind, let us turn to the elements of cohabitation.

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