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Oh, What a Tangled Web We Weave

7471380_sThe worst case scenario happened. You came home to find out that your once loving marriage has been torn apart because your spouse had an affair. Now what?


Not all affairs are a direct line to divorce. Sometimes, an affair can be a symptom of something that is not working in a marriage, and sometimes, an affair can be the result of someone who is simply an unfaithful person.

Some marriages can be salvaged through counseling, which can be done individually or as a couple. The important thing to remember, though, is that the only way counseling can be successful is if everyone involved wants to see the marriage repaired. Regardless of what decisions you make after you learn of an affair, a good counselor is a wonderful resource who can help you through this extraordinarily stressful time in your life.

Meet with an Attorney

If you’ve determined that your marriage can’t be repaired, you should meet with an attorney to plan your next steps. Depending on how long you have been married and what you have accumulated during the marriage, an affair can make a difference in the amount you receive in equitable distribution and/or alimony. It’s important to discuss with your attorney the different ways an affair can impact marital property, especially if joint assets were used to “court” the girlfriend or boyfriend.

Moving Day

Even after an affair, there are times where both parties refuse to move out of the house, resulting in a very tense household! If this sounds like your situation, you may need to file for a Divorce from Bed and Board, and ask a judge to decide who moves out. In this very tricky scenario, a judge will look at a variety of factors, including whether an extramarital affair occurred, to determine if they can kick someone out of the house.

Alienation of Affection? Criminal Conversation?

North Carolina is one of the very few states left in the country that recognizes the civil claims of alienation of affection and criminal conversation. If you were alive and breathing during the John Edwards trial with his mistress, you may have some recollection of what these lawsuits are all about. Essentially, North Carolina will allow you to sue your spouse’s paramour for breaking up your marriage.

Alienation of Affection. In order to bring a lawsuit against a third party for breaking up your marriage, you need to show three things:

  1. Genuine Love and Affection: Before you begin to consider bringing any claims, you need to be able to show that there was a happy marriage. While no one expects to see a perfect marriage, there has to be at least some showing that the two of you were happy before there was any cheating involved.
  2. Love and Affection Destroyed: You must then show that whatever love and affection previously existed between you and your spouse has now been destroyed.
  3. Wrongful and Malicious Acts Caused the Loss: Finally, you need to show that it was the actions of the boyfriend or girlfriend that caused the destruction of your marriage.

One interesting thing to note about the alienation of affection claim is that you do not have to prove that either party had sex. This means that if a third person, any third person (your mother in law, perhaps?) was the reason you and your spouse broke up, they could be held responsible for the resulting divorce.

Criminal Conversation. Although similar to alienation of affection, to prove criminal conversation, you must show that there was sexual intercourse between your spouse and another person. Here are the elements to this claim:

  1. An actual marriage between you and your spouse.
  2. A third person had intercourse with your spouse during your marriage.

Although bringing a suit for alienation of affection and/or criminal conversation might seem like a great way to get vindication, you should discuss with your attorney the pros and cons of bringing such a suit to determine if it will be worthwhile. Recently, North Carolina juries have been very generous in these suits, awarding an aggrieved wife $9 million in 2010. However, this is not always the case and may result in a long drawn out litigation with very little reward in the end.

If you find out that your spouse has had an affair, after you get over the initial shock – which may take some time, figure out how you would like to move forward. There are many professionals available who can support you during this time and can help to guide you in a direction that will ultimately be in your best interest.

About McIlveen Family Law Firm

The McIlveen Family Law Firm handles all types of divorce and family law cases.


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