In the heat of the moment, when things are going awry in your marriage, it’s hard to think clearly about all the practical, sometimes scary, aspects of separating from your spouse. If you have time, however, to safely slow down and make a practical plan before moving forward, here are some things to do before you begin the divorce process.
Have you tried counseling? Sometimes you just know that things are over. But if you have doubts and your spouse is willing, it can be so helpful to seek professional counseling, either together or separately. Even if your spouse is not willing to try therapy, it’s beneficial to go on your own. Having a neutral party to talk things over with, get feedback, and focus on what’s important for your well-being is invaluable. In my opinion, a good divorce lawyer with your best interests at heart will always encourage you to seek counseling, or even insist upon it in very tumultuous circumstances.
Get to a lawyer ASAP. Scheduling a consultation with a lawyer does not mean you’re obligated to hire that lawyer or move forward with a separation or divorce at all. It is simply a good idea to get as much information as you can, as early as possible. A lawyer can give you useful advice about protecting yourself, your children, and your finances before you leave the marriage. While friends who have been divorced are a good source of comfort and camaraderie, there is no substitute for sound legal advice.
If you have had an affair, do not confess to anyone before talking to a lawyer. North Carolina is one of the states where adultery is illegal, and even more problematically, a jilted spouse can actually sue their spouse’s lover. Having an affair can cost you (and your paramour) substantially. It can also have drastic consequences on whether you or your spouse will be awarded alimony. If you have been unfaithful and have a guilty conscience, resist the urge to spill your secrets immediately. First, have a confidential meeting with a lawyer to discuss the possible consequences and how to handle them.
Know what your assets are, and put yourself in a strong position to protect them. First of all, if your spouse has been the one who’s in charge of finances, taxes, and investments, the best time to educate yourself is while you’re still living together. You and your lawyer are going to need to know about all of the property, assets, and debts that you and your spouse share. Don’t forget about insurance policies and retirement accounts. It is much easier and less expensive to find out by looking through paperwork in your own home, than to try to uncover everything during the discovery process of your divorce. Talk to your lawyer about what financial documents you should look for and gather for your case. Secondly, when you and your spouse do separate, keep possession of the things you want and need, like your car and at least a portion of the cash in savings. If you’re worried your spouse might sell anything valuable, like heirlooms or collectibles, keep them. Finally, make sure your lawyer knows about any real estate that you and your spouse own, and any belongings that do wind up in your spouse’s possession that you believe should not be. Your lawyer can help you take steps to recover your possessions and protect your real estate from being sold without your consent.
Start preparing for your separate life. Before you actually separate from your spouse, start assembling the basics that you will need to start your new life. Close or freeze joint credit accounts and block access to home equity loans. Close your joint checking and savings accounts and open separate ones. Change the name on utilities if necessary, and change the passwords on accounts that you no longer want your spouse to be able to access. Consider getting a post office box so you can securely receive mail from your lawyer, bank, etc. Again, think strategically and talk with your lawyer about ensuring that your transition will be as simple and well-handled as you can make it.
This list is not exhaustive by any means, but it should give you some things to think about if you’re considering or planning to divorce. Every case is different, so the bottom line with most issues is to talk to your lawyer about the best course of action.
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:
That the couple was happily married and a genuine love and affection existed between them;
That the love and affection was alienated and destroyed; and
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?
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.