What is a 3rd Party Waiver of Claims exactly and how should it be included in a separation agreement? What if the other spouse will not agree?
A third party waiver is a provision in a separation agreement whereby the parties agree not to pursue a civil action for alienation of affection or criminal conversation against the paramour of the parties. If one of the parties refuses to agree to the waiver they cannot be forced to do so, however as with any negotiation other incentives can be offered to bargain for a waiver to be included.
Thank you…so I take it to be that NC still practices such torts then?
Yes. NC is one of only six states that still recognizes these “heart balm” actions.
Now I guess a bit of “advice” is in order then. Here’s the situation…I am involved (emotional, but not physically) with a man that was married. His wife found out about the involvement and they are now separated. I am terrified that she is going to “come after me”. Their relationship was in trouble long before I came along…and she has even admitted that for the last 9 months (before me) it was a “business partnership”.
I guess my question is…should I just hold my breath and hope that she doesn’t persue anything, or if she does, hope that she can’t “prove” anything or should HE get a 3rd party waiver of claims in his separation agreement. I sort of feel like covering ourselves witht the last one, but that seems like admitting there was fault to begin with and really there wasn’t.
From the sound of your post, your involvement is the reason they are separated…I think she would still have a case against you for Alienation of Affection but it may be more difficult to prove if he could show there were previous problems between them. Though they were having issues prior to your involvement, it may have been just the “last straw”…
I am inclined to agree with you about the waiver. To me, it would seem as though I were trying to cover myself for criminal conversation, that wasn’t there. There’s no proof of that since it didn’t happen so it’s pointless to try to get her to agree not to sue you for it.
In the case of AofA, it would seem as though I knew the impact my involvement had on their relationship, but am trying to lessen that or not take responsibility. If there is a true concern that she could come after you for AofA, and there’s a strong possibility that she could win…it may be a good idea to do whatever you can to protect yourself. If it does not seem likely, then I feel it would not be worth it to put the idea in her head, so to speak, by adding in the waiver…
Not real sure if she would be the type to persue it or not. Therefore, still not sure if it is something to even think about putting in the separation agreement. I mean, 3 years is a long time for limitations.
How would he go about proving that there was indeed problems between them?..they didn’t seek counseling. He says he was miserable and says that she told him that periodically also. He was actually in the process of trying to find a place to live so that he could leave. He also was the first one to make contact…with me. Yes, I did respond, but he said that was miserable and was getting out.
While I personally do not see myself as the “reason” for their breakup, I certainly see how that would be construed. I am simply trying to protect myself and what might happen.
Also wondering…how common is this? I have known several cheaters, as well as “other women” and have never heard of such. Is it something that attorneys mention right off the bat when divorce is concerned?
Some folks do think that presenting a proposed agreement with a 3rd party waiver does imply some sense of guilt, however I believe it is a risk worth taking. Even if the wife were to use that her husband attempted to have such a waiver included in a separation agreement, it does not prove the required elements of either tort. I have seen many cases where these waivers are included when there has been no affair, it simply clears the air for any friends, or future romantic interests who may come along.
These claims are costly to pursue, and often times attorneys will tell folks its not worth the time, trouble, pain and expense, especially if the defendant does not have a lot that could be awarded as damages if the suit is successful.
I just watched a webinar on Alienation of Affection. The lawyers seem to have a checklist they use. For her to come after you successfully, a lawyer would want:
You to be rich. Awards are mostly below $100K. Lawyers rarely take these on contingency, and want usually $10K up front from the person suing.
Your boyfriend’s wife to be blameless and humble, a good victim.
You to have been outrageous and malicious. Continuing an affair with him while he is still married will NOT help you. Having sex or a live-in relationship with him after he has separated and moved out can be used to prove you had sex before separation.
She has money to pursue the action
Then again, if she has money, and is motivated, she can probably find a lawyer to take the case.
Good luck. Stop messing with someone else’s marriage. If he is worth it, then wait until he is divorced. If he initiated the affair and won’t stop, then he is screwing up himself and needs to get his head on straight. See my other recent post related to this.