My wife recently told me that she wanted a separation, we have not done any paperwork or signed anything. Recently I found out that she has been having an affair, I have found the text messages and pictures on her cell phone. We have 2 small children and have recently bought a homee. My question is, who should/is required to move out of the home? Am I required to provide her with any type of support, and do I have legal grounds to go after the other person involved?
You do not have to move out of the home, and may file an action for divorce from bed an board (judicially ordered separation) to get her to move based on grounds of adultery.
Depending on your financial status you may owe her child support, and or post separation support.
If you can prove that her paramour destroyed the affections of the marriage, and/or had sex with her, you may file a civil action for damages against that person for alienation of affection and/or criminal conversation.
Thank you for the quick reply, however your answer provoked a few more questions.
I am not going to make my children go without, I have every intention of providing for them. Why would I have to pay Post Separation Support if she is the one who had the affair? Will I be required to sell the home?
What proof is required to show that he had sex with her? Are the text messages enough? What about pictures of them together?
Infidelity is a bar to alimony, but not necessarily to PSS. A court can consider an affair in making an award of PSS, but such conduct is not an absolute bar to temporary support.
As for the children, you will provide for them through child support.
You will not be required to sell the home if the martial estate can be divided equitably absent a sale. (you would buy out her share of the equity).
To prove your wife had an affair you must prove inclination and opportunity, in other words, that these two had the inclination to engage in sexual activity, and that they had the opportunity to do so (staying somewhere together).
Does it matter that they stayed together outside the state of NC?
No, not for purposes of proving marital misconduct.
Great thank you. Last couple of questions for now. Can I force her out of the house and change the locks and do you think this would give me a good case for full custody of the children?
You cannot force her out of the house, but if she leaves voluntarily with the intention of residing elsewhere, you may change the locks.
One spouses martial misconduct is not determinative in a custody case. The court must consider all factors relevant to the best interests of the children in making a determination of custody.
Ok I understand that I cannot force her to leave. Should I confront her with what I know or should I wait until I have something in writing from a lawyer?
I really can’t answer that for you, as it is a matter of personal decision and not a legal issue.
I am not sure what to do, I travel and after she puts the kids to bed she invites him over to the house. I know he has been there because I asked a friend to drive by the house and see if his car was there and sure enough there it was. What are my legal options.
You may want to consider filing an action for a judicially ordered separation (divorce from bed and board) in order to get her out of the house. You may include a claim for child custody in such an action. I strongly suggest you schedule a consultation with a lawyer in your area to discuss the specifics of your case and to create a plan of action moving forward.