Cheaters never prosper

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:

Dear Carolyn,

I thought my wife was having an affair. I hired a private investigator and he did not figure out anything, so I confronted her about “the suspect.” She finally admitted that she had oral sex with “the suspect” but denies intercourse. I want out, and out now! Will I have to pay alimony? Paying alimony, under these circumstances, would make me very angry.

Carolyn Answers:

Prior to 1995, a dependent female spouse who had intercourse with a man could not receive alimony. The law was limited to actual sexual intercourse as we think of it between a man and a woman. In 1995, the law expanded to include many more acts of sexual misconduct as reasons not to pay a dependent spouse alimony. Under NCGS Section 50-16.1A “illicit sexual behavior” was defined as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14.27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse.” “Deviate” is actually the word used in the statute, and includes same-sex acts, as well as acts like oral sex.

If your wife asks for alimony, then you will need to raise as a defense her “illicit sexual behavior” as a reason to bar her alimony claim. It would be nice if you had a recording, legal if both are in North Carolina when the recording is made, confessing to the oral sex. You do not have to tell her you are recording if both are in North Carolina. You can use the recording as evidence in court.

There are two other things your need to know. First, you must not be guilty of “illicit sexual behavior” yourself. The law indicates that if both spouses have committed “illicit sexual behavior,” then it is a wash and neither gets to really use the “illicit sexual behavior” as an advantage in the alimony case. In other words, you must be proceeding with “clean hands.” The second thing you need to know is that if you forgive her you have condoned the “illicit sexual behavior.” If you condone or forgive, then you have erased your evidence. Continuing in the relationship with knowledge of her “illicit sexual behavior” is frequently deemed forgiveness, so if you want to separate, now is the time.

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This blog is revised from a previous Ask Carolyn in The Rhino Times.