3rd party claim waiver


#1

I had an affair. I am still secretly seeing the paramour and we plan to marry once everything is behind us. My stbx and I are FINALLY in agreement on all the ED, custody, support and alimony issues. My attorney is drafting the agreement and it includes the following paragraphs:

GENERAL
From and after the date of this agreement, husband and wife shall and will continue to
live separate and apart, each from the other, as fully, completely, and in the same manner and to
the same extent as though they had never been married. Each party may live at such place or
places and may reside and associate with such other persons, as they deem fit. Husband and wife
acknowledge they may engage in any employment and may conduct or carry on any trade or
business as either one sees fit, all for the separate use and benefit of themselves as single
individuals and not as a married couple.
NONINTERFERENCE AND WAIVER OF THIRD PARTY CLAIMS
Husband and wife each shall be free from interference, authority and control, direct or
indirect, by the other, as fully as if he or she was single and unmarried. Neither shall molest nor
harass the other, nor compel or endeavor to compel the other to cohabitate or dwell with him or
her. Neither party shall make any attempt, directly or indirectly, to control, restrain or interfere
with the right of the other party to engage in such employment or carry on such business, as they
deem fit. Furthermore, neither husband nor wife shall trespass upon the property of the other
unless invited to do so. Husband and wife give up, relinquish, and forever waive any claims,
lawsuits or other actions of any kind against any third party such as alienation of affection,
criminal conversation or any and all other claims as it relates to their marriage.

There is no way my stbx will sign this agreement due to the underlined text above. My question is whether there is a way to reword it so that it is more about the people we are dating NOW vs the marriage? So if was changed to read something like “Husband and wife give up…as it relates to persons they choose to date during the separation period”. Since I am dating this person, would this modified wording protect him from being sued due to the relationship during the marriage?


#2

There is no way to reword the waiver as there is no cause of action against someone you are dating now, and a claim only exists against a third party paramour that a spouse became involved with prior to separation. Unless your spouse signs the waiver as written he can pursue a claim against your paramour for the pre separation behavior.


#3

She did change it slightly, where it now reads: “Husband and wife give up, relinquish, and forever waive any claims, lawsuits or other actions of any kind against any third party or any and all other claims as it relates to their marriage.”

Would it still be a solid waiver if it read “Husband and wife give up, relinquish, and forever waive any claims, lawsuits or other actions of any kind against any third party or any and all other claims while still legally married”.


#4


#5

The divorce date is not a bar to a 3rd party claim which previously existed.

The new law only states that after October 1, 2009 a claim cannot be based on action which occurred post date of separation. Though post date of separation behavior can still be used as evidence to corroborate an ascertation that an affair began prior to separation.


#6

So would this revised text work: Would it still be a solid waiver if it read “Husband and wife give up, relinquish, and forever waive any claims, lawsuits or other actions of any kind against any third party or any and all other claims for those they are dating while still legally married”.

If I am dating this person, he couldn’t be sued right?


#7

That language seems sufficient.


#8

Erin, just so I’m 100% clear…does the language I suggested protect the 3rd party from before if I am dating the 3rd party now? That’s my goal.


#9

I believe it does.


#10

Just thought of an issue: that language only protects the 3rd party while I’m legally married to my ex. I guess he could then sue the 3rd party once we were divorced? I have a call into my attorney to see what she says as well but I always like to get your opinion on these matters too.


#11

No, I believe the waiver is sufficient as is.


#12

Erin, the agreement now reads “Husband and wife give up, relinquish, and forever waive any claims, lawsuits or other actions of any kind against any third party or any and all other claims for those persons they choose to date from the date of separation until legally divorced”.

It seems like this would still lprotect the 3rd party I was dating prior to separation as long as I also date him prior to being legally divorced. Is that correct?


#13

Yes.


#14

The line now reads “…for those persons they choose to date after the date of separation”. Just checking - if I date the 3rd party after separation, this person is still protected through this clause, correct?


#15

Yes.