Tag Archives: Adultery

The Technology of Cheating

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Website for affairs

If you live in North Carolina, you’ve probably known someone who has sued or been sued for the tort of alienation of affection.  Or you’ve at least heard of a jilted spouse who wants to sue the spouse’s lover.  According to Wikipedia (and they’re never wrong, right?), North Carolina is one of only 7 states that still allows lawsuits for alienation of affection.  This law has been around for a long time, has survived numerous attempts at repeal, and is used today far more often than you might expect.  Thus, in North Carolina an outsider who interferes in another’s marriage can be in some really hot water.  For decades, NC juries have awarded large sums to husbands and wives whose marriages were broken up by third parties.

Now, however, one plaintiff is trying to apply this old (many would argue outdated) law to very new technology — the dating-while-married website Ashley Madison, whose motto is “Life is short.  Have an affair.”  One North Carolina man is suing the website for alienation of affection and claiming that the online dating service aided his wife in finding her paramour.  Before any jilted spouses get big ideas about suing any person or business who facilitates or encourages an affair, however, they should know that the suit has little chance of succeeding.  For one thing, the legislature in 2009 passed an amendment that prevents spouses from suing businesses that play a role in extramarital affairs (hotels, restaurants, clubs…).  Plus, the website was merely a facilitator of the cheating, not the actual perpetrator.  If the plaintiff’s wife hadn’t met her boyfriend on Ashley Madison, couldn’t she have met someone on any other dating site?  Or any bar?

While this man’s lawsuit will most likely be dismissed, many North Carolinians successfully sue their cheating spouses’ lovers for alienation of affection.  In order to prove alienation of affection, they must show:

  1. That the couple was happily married and a genuine love and affection existed between them;
  2. That the love and affection was alienated and destroyed; and
  3. That the wrongful and malicious acts of the defendant caused the alienation of affection.

What do you think?  Is this type of lawsuit outdated?  Should we be able to sue those who facilitate or encourage the cheating, in addition to the actual person who does the cheating?

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Wrapping Up on Snooping: Nanny Cams

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Nanny CamsTo wrap up this series of blog posts on spying on your spouse, let’s talk about “nanny cams.”  The use of secret video recording, or at least discussion of it, is prevalent today.  You might be wondering then, given all of the legal limitations on other forms of snooping that we’ve discussed, how nanny cams can be legal.  Using hidden cameras, however, does not in fact violate the wiretapping statutes that we have addressed in other blog posts.

The use of nanny cams is in fact permissible, because the rules about video recordings are different from rules about voice and telephone recordings.  Our federal and state wiretapping laws only apply to the interception of oral communication.  This is why nanny cams (the legal ones, anyway) do not have audio recording features.  It is generally okay to record video without an audio feed in your own home, without the consent of the person being video taped.  If you own the property, or have permission from someone who owns the property, it is most likely permissible to place an inconspicuous video recorder to determine what is going on in your home.

Summing Up:  Snooping on Your Spouse

We have addressed a number of ways in which you might be legally able to check up on your spouse’s activities.  With all of the technology available to us today, it is easy to indulge your insecurities or give in to your suspicions and start checking up on your loved one.  Sometimes snooping is reasonable and warranted; sometimes it is unjustified and invasive.  Just because you could legally snoop through some of your spouse’s communications, does not mean that it is the right or healthy thing for you or your relationship.  Before you start spying, think it through — what are the likely effects on you, your family, and your relationship if someone (especially your spouse) finds out that you distrust your spouse enough to start snooping?

Snooping should only be undertaken with care, from both a legal perspective and a personal one.  Legally, there are limitations and complex considerations involved with some types of snooping.  To be certain that you do not violate federal or state statutes and expose yourself to civil or criminal liability, it is always best to talk with a lawyer before spying on your spouse.  Also, just because a method of getting information is legal, does not mean that the information you gather can be used in court.  So take into consideration whether the breach of trust will be worthwhile if you cannot prove in court what you find out from snooping.  Finally, consider your personal well-being and the strength of your relationship.  If your gut is telling you that even legally permissible snooping is a bad idea in your situation, listen to it!  Think honestly about the source of your doubts and how you and your partner can address them…and hopefully avoid the need for a divorce lawyer altogether.

GPS Tracking

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GPS Tracking

Another form of snooping that some suspicious spouses might be tempted to employ is placing a GPS tracking device on the spouse’s car to track his or her whereabouts.  But before you start fantasizing about spying like Jack Bauer (or Sydney Bristow, for the ladies), it is unclear right now whether this form of spying on your spouse is permissible.  On this subject, the law has not yet caught up with technology.

In US v. Jones last year, the Supreme Court addressed whether the government may use GPS devices hidden on vehicles to track the activities of criminal suspects.  The Court found that using such a device does constitute a search under the 4th Amendment, so police are generally required to obtain a warrant in order to place a GPS device on a suspect’s vehicle.

When it comes to you and your spouse, some lawyers disagree about whether the Jones decision would apply to using a GPS device to track a family member.  There is no law on this subject yet, and it is unclear how courts will rule.  In the family law context, the question boils down to two issues:  (1) ownership and (2) expectation of privacy.

Ownership

If you own the car, it is titled in your name, and you are not separated from your spouse, then you most likely have legal authority to install a GPS device on the car.  The same would be true if you wanted to track your spouse using a phone GPS app — if you own the phone, it is registered under your name, and you are not separated from your spouse, you can probably install the tracking app without being in any legal trouble.

Expectation of Privacy

If, however, you do not own the car or phone, it is not titled in your name, or you are separated from your spouse, then your spouse may very well have an expectation of privacy in his or her car and phone.  While North Carolina courts have not specifically addressed this issue, you should think twice about using GPS under these circumstances because your spouse may have grounds to sue you for several torts.  You could potentially be liable for money damages for invasion of privacy or trespass if you violate your spouse’s expectation of privacy.

Both technology and the law are constantly changing.  If you are thinking of using a GPS device to track your spouse, talk to a lawyer first about where the law stands at the time and how your actions might affect you and your legal position in the future.

Separated Spouses and Sex, Part 2

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19168112_mAlimony & Post-Separation Support

             Sex during the separation period can potentially be a big problem for a dependent spouse who plans to ask for alimony.  Marital misconduct can be an important factor in the outcome of alimony claims in North Carolina.  While having a sexual relationship after the separation does not constitute marital misconduct, a judge might consider it to be corroborating evidence that an affair was going on before the date of separation.  In an alimony case, the dependent spouse is the one who receives alimony, and the supporting spouse is the one who pays alimony.  In North Carolina, a dependent spouse who would otherwise be entitled to alimony is completely barred from receiving alimony if he/she had an affair while the parties were living together.  Likewise, the supporting spouse may enter a sexual relationship after the date of separation without affecting his/her duty to pay alimony, but the Court could consider it as corroborative evidence of an affair before the separation.  This use of post-separation sex to corroborate an allegation of marital misconduct can particularly become an issue when each party is trying to prove that the other had an affair for alimony purposes.

             Under North Carolina law, alimony and post-separation support that have been awarded to a dependent spouse terminate when the dependent spouse remarries or engages in cohabitation.  North Carolina General Statute § 50-16.9(b) says that “[c]ohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.”  So a sexual relationship that the Court might see as evidence of cohabitation can lead to the early termination of alimony and post-separation support.  If alimony and post-separation support are an issue in your case, talk candidly with your lawyer about protecting your claims if you are involved in a sexual relationship.

 “Heart Balm” Lawsuits

             If you have lived in North Carolina for long, you might have heard that we are one of a handful of states that allow a spouse to sue the person with whom their spouse cheated.  These actions are called “heart balm” actions, presumably because they are supposed to help heal the heart of the jilted spouse.  The first cause of action is called Alienation of Affection, in which the person who files the suit must prove that a third party caused his/her spouse to lose affection for them.  Sex does not have to be part of this claim, but the courts have ruled that sex before the date of separation can help prove alienation of affection.  Just as with alimony, sex that occurs after the parties have separated can be used to corroborate that there was already a sexual relationship before the separation.

             Of the two heart balm torts, Criminal Conversation is an easier claim to prove than alienation of affection, because the jilted spouse who files suit only has to prove that extramarital sex occurred and that he/she was legally married when their spouse was having sex with the third party.  Once again, post-separation sex can be used to corroborate conduct that occurred while the couple was still living together.  The bottom line is that you should know that engaging in sex while you are separated from your spouse could place your sexual partner in jeopardy of a lawsuit.

Separated Spouses and Sex, Part 1

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            This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic:  when is it okay to have sex after you separate from your spouse?  This issue comes up often as people transition from married life back to being single.  Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people.  North Carolina requires a one-year separation period before spouses can file for absolute divorce.  During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again.  It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.

Sex With the Ex

            Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again.  Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period.  While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent.  With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing.  It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse.  If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.

Criminal Adultery

             Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people.  Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery.  Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor.  Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits.  A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person.  This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics.  While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you.  While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.