Alienation of Affection / Criminal Conversation

North Carolina Divorce Law Divorce and Separation Answers
1

This is a little bit hairy so I’ll do my best not to be extremely wordy and try to just get the facts out here so I can get an answer.

Husband and I got involved with a third party some years ago (female). I did NOT want to be involved. However, my husband at that point was violent and angry and I figured if it calmed him down and made life a little more sane then alright. It didn’t last long and I finally had enough and said that I was out of it and didn’t want anything to do with the relationship. I let them go on and do their thing for a while but after a while, I couldn’t stand it any longer as he was neglecting his children to be with her and talk to her so despite my fear of him, I told him I wanted it to stop. He told me that I wouldn’t take away the best thing that’s ever happened to him and continued the affair. I have a chat that shows where I went to her and asked her to stop and she said no and it wasn’t up to us, it was his choice. My parents took the girls on vacation for a week (they didn’t know anything like this was going on) and I left him at that time for a few days. He begged me to come back and said things would be different and they were for a short while but then he went back to his old ways, always trying to get me to go to Swingers clubs, etc. and I was done with it. At that point I tried to look for a full time job and save some money to leave. I still hadn’t told my parents any of this because I was embarrassed being a domestic violence victim and having not reached out.

About 6-7 months later, I started going out and pursuing more of my singing career. I was singing at the VFW a lot and there was a gentleman who was as good a singer as I. Both of us had been trying to pursue gigs alone but when we started singing together, we started getting a lot more gigs. He became my best friend and someone that helped me through what I was dealing with. He knew that I was planning on leaving once I got some money together (unfortunately in this economic market, that just wasn’t going well). We talked and texted all the time because my husband had alienated ALL of my friends from me. He knew that my partner and I were singing at places together. Eventually my partner and I fell in love and we did have an affair. However, it didn’t last long and we stopped. We still remained friends though and he was still the one person I could trust to help me when I needed it. The husband knew all about this the entire time and I certainly wasn’t going to lie about it.

Fast forward. I eventually went to counseling for domestic violence after several very bad bouts with him and there were several times when my singing partner and I just stopped having any conversation because he had enough that he was dealing with as well but eventually we’d start talking again. I got a job, my parents helped me get out of the house (with the help of my attorney) and moved my daughters and I somewhere on our own. This is where we’ve been since then. My partner and I have picked up our friendship and have started seeing one another now that I’m out of the house. He loves the girls and treats them well and has been there to help me out financially whereas my STBX has fought paying ANY child support and still owes about $2000 in arrears.

Well, now the STBX has served him with AoA/CC, trying to get $10,000. I have all kinds of information showing that my singing partner was NOT the reason for me leaving. My parents will even testify if they need to. I guess I would like to know what needs to be done. Can my attorney represent him or does he even NEED an attorney if he has witnesses? And what sort of proof do I need in order to show that he was not the reason I left (even though we are seeing one another now). My attorney sent the STBX attorney a letter stating that my partner would be present at pick up and drop off of the children and that would be for my protection. We have been separated since November, I served him with Divorce from Bed And Board papers back in February prior to the separation and he is only NOW serving my friend with these papers. I know all he’s doing is trying to take someone else out of my life as he has tried to do for 10 years and is trying to take someone away from my daughters that they love.

I understand that the cases are difficult to win. My friend currently has no income to speak of and has been out of work for two years (despite his attempts to find work). He owns no property, has no savings … nothing. So what happens?

Any help would be appreciated. Thank you!!

2

Your attorney can represent him, and he should hire someone to represent him. Specific advice regarding what needs to be proven at trial is beyond the scope of this forum.

3

I’m asking what we need to prove. I assume we will need to prove that he was not the cause of the divorce and that I had planned on leaving despite my friend’s involvement. Is that a correct assumption?

Anyone else, please feel free to contribute.

4

Yes, anything that shows you had a unhappy marriage will be good. The fact you were in counseling for domestic violence will play well to your point that the marriage was not healthy and happy.

5

[color=#000080]* NOT AN ATTORNEY HERE, SO TAKE IT FOR WHAT IT’S WORTH*[/color]

These suits are expensive, complicated, and protracted to resolve. Does your ex really have the means to pursue this to its bitter end since he apparently has no money to pay child support? All of his own actions will be laid bare on the court. Evidence of physical abuse, evidence of continuing a relationship after it was requested that he stop, evidence that he knew about your affair and let it continue without objection while carrying on his own affair will all come to light in court if your paramour’s attorney is worth his salt.

I think you have a good case against an award of AA. However, I don’t think that there is much you can do about a claim of CC. That law is pretty cut and dried. Y’all had sex prior to the final divorce date, you’ve admitted as much, period. Not much else matters for a guilty verdict. Fortunately, awards given for that offense are less expensive. Testifying to the fact that your husband already persisted with his mistress after you had requested him to stop, might be able to be used as a way of ameliorating punitive damages against your paramour. You’ll have to ask his attorney about that. Certainly, your friend’s inability to pay any such damages will go a long way towards lessening any award. If there’s any way that his inability to pay could be presented to your ex’s attorney, that might help that attorney persuade your ex to either settle or drop the case.

Attorney’s fees could easily run in to the 10-50k range. Retainers are high themselves. If your ex has filed pro se, then personally I’d bury him in paperwork until he either gives up pursuit or fails to meet a deadline. (There are ways to stall to make it difficult for him to amend a pleading/response in a timely manner. If he fails to file something correctly or on time, under certain circumstances, one can ask for a dismissal on those grounds. To a point, various motions can be made to stretch out proceedings, however, you must be careful not to overuse this as it will piss off the courts which will resent the waste of time/resources. An experienced attorney can advise better on this and knows when/where to push and where not to.)

6

Did your friend actually get served with AoA/CC court papers or did he just get a strongly worded letter to pay up or be sued? It’s a common tactic for AoA/CC suits to first send a strongly worded letter to scare the party into paying them (essentially blackmail). Until your friend is formally served then it’s all just steam. These claims are MOSTLY used to try to extort more assets out of the other spouse.

Very few actually go to court and the results of these suits are unpredictable. Most people have read about the cases where someone was awarded millions of dollars (of which will never be collected), but the lesser known results are awards of only $1 or $1000.

Oh pursuing these suits is more expensive then defending against them, but both are still expensive.

7

Athos and Endoftheline … thank you SOOOOO so very much for your help and insight. Athos, I have forwarded the paperwork (it’s actual paperwork … like a Civil Suit, etc. drawn up by my ex’s atty but was sent via certified mail … not served by a sheriff or anything but it has been filed with the courts) to my attorney and if something isn’t done by my attorney to “make this go away”, then the first step will be to file for an extension of 30 days to answer. After that, I’m unsure of how else to stall (although I should know because the ex did nothing BUT stall when it came to the divorce, filling out equitable distribution papers, child support, etc.). Yes, he had the first affair so I could go after HER (his mistress who he still has contact with evidently) for CC and AOA as well? I mean we had normal marital discord prior to that point and we had a lot of money woes and the domestic abuse was present but not as bad as it was once I told him to end his affair. That was when it got worse. I have already served him with Divorce From Bed And Board citing adultery and making life unlivable, etc. I forget the exact wording … But I did inform my attorney that if this isn’t taken care of in a timely manner than I will have no choice but to go after his mistress for the same thing. I honestly don’t know what he’ll say. None of us have any assets or money so I don’t know what he thinks he’s going to get out of any of this except thinking that it will make my friend just walk away from us because he doesn’t want to deal with it. But that isn’t happening and he’s not going to get a dime out of this so I don’t know why he thinks he can win this at all.

Again thank you all SO MUCH for your insight. I greatly appreciate it!!

8

I’m confused as to why the paperwork was sent to YOU and YOUR attorney. AoA and CC are third party claims, you have nothing to do with this suit as it is not against you. I’m not sure but perhaps the suit can be dismissed or delayed because they did not send the paperwork directly to your friend. Your friend must be properly (legally) served. And unless your lawyer is also representing your friend then I fail to see how they’ve been served.

If your friend has no money, if you have no money, if he has no money, then personally I see this AoA/CC thing as him just acting out. AoA/CC are difficult to win to begin with (because it’s all hear-say), but based off what you’ve written, I’d have a hard time imagining that he will gain any ground with the suit. He could be doing this to indirectly threaten you in order to gain more assets (if you have any to divide to begin with).

Yes, you CAN sue your ex’s paramour as well. And if I were you, I would consider it, not because there is anything to gain from the paramour, but in order to call his bluff.

I personally feel these suits are really nasty and border on extortion. The only people who gain from these suits are the lawyers, …they’re the only winners. However, all you need is ONE vengeful, bitter ex-spouse to make a bunch of lawyers really wealthy. I wish you well in dealing with this, it can be very stressful.

9

My biggest curiousity is how someone who cannot afford to pay their $2k in CS arrears can afford to pay nearly that much for an attorney retainer to pursue AA/CC charges? Not sure, but if your child support is through the state, it might be worth letting your case worker know what’s going on. If he can afford to do one and not the other then he may be hiding income.

As for stalling, yes, wait until near the end of the response period and file for an extension. Then respond. Motions can be filed, requests for interrogatories, requests for documents and other things can be also filed which may assist in extending the time…especially if you request for something he doesn’t want to provide, because then his attorney will also do the stalling to respond, then file extension thing. As I said, though, be careful with how this is all used and don’t overdo it as it will be seen as wasting the courts time.

And, be careful about filing AA/CC against his paramour. While it seems logical on the surface, there is such a thing as a counterclaim for malicious prosecution, which she could file against you based upon the facts of what is now going on.

EndoftheLine, I feel the same way you do about these suits. They are petty, vindictive, and downright treat people like chattel.

10

If his lawyer was worth the ground he stands on the retainer fee for AoA/CC would be considerably more than 2k.

11

Have you all thought about being attorneys? You’re definitely making me feel a lot better. Let me see if I can go down through the line here and answer all the questions.

EOTL: No, my friend was served at his house. I’m sorry if I wasn’t clear on that. It was sent to his home via certified mail. His mother got the mail and read it to him while he was out. His father was just diagnosed with Stage III/IV throat cancer and does NOT need this stress on top of everything else.

I’ve checked with the DA’s office and they can’t help as they only work with criminal cases and not civil.

I owe my attorney a good bit of money as well and am making payments but he has stated that he will not do anything further until a “substantial payment” has been made on the account. Given that I am working my fingers to the bone to make ends meet and the $475/month given to me each month for TWO CHILDREN for child support doesn’t help. He was fired from his third job in three years on the day before child support court. He obtained a $10/hour job doing sales and they’ve created a “temporary order” where he pays $475/month and then they’ll go back in a couple of months and see if he’s made any commissions. There was no order in until March. However, in mediation he agreed to pay NC guideline support starting December 1. That was when he had a decent job but of course he only paid what he wanted to when he wanted to (which wasn’t a whole lot) so my attorney said he would go for arrears (but won’t until I can get some money together). I’m sure he also won’t draw up any papers to do anything about going after HIS mistress until I can get some money together.

ATHOS: The atty who served my friend with the papers is the same atty that my STBX is using for the divorce. He has already paid the retainer and has paid in excess of $15,000 already in atty fees (fortunately the atty I’m using is a friend of the family and has kept my expenses to a bare minimum!). I honestly don’t know if he had to pay ANOTHER retainer for this or what. Truth be told, since he had the affair FIRST and I was the one who ASKED him to STOP the affair, truthfully I have the better case for AOA/CC (however, like you said, I feel that it looks much more like malicious prosecution and I’d be afraid to get hit with that – I don’t want him getting away with this though thinking that he’s going to have me over a barrel). The thing that bothers me is that somehow he is able to live. $10/hour now, he has all but depleted his 401k, I’m SURE he owed a GREAT DEAL of taxes this year due to how much money he DID remove from the 401k, atty fees, was out of work for a month, the house is close to being foreclosed on … However, somehow he still is able to spend money on gas every day (he’s a salesman, door to door for a communications company). The only thing I can come up with is that he has hooked back up with the mistress as she claimed to have a lot of money set up in trusts (and she’s married to an attorney … from whom my STBX was getting FREE LEGAL advice from for quite a while … no he wasn’t aware of the affair either but he will soon).

In looking briefly at malicious prosecution, here’s what I found:

malicious prosecution n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins, and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original law suit is decided in favor of the victim.

So if I went after her and won, she could sue me but would have to prove that I did it out of malice with no substantial basis for the suit. I have too much proof, I believe, for her to try to sue me for that. Sounds like an MP suit is much like an AOA/CC suit … usually nothing but extortion.

12

If he has an order, temporary or not, to pay child support but has failed in payments then I would contact NC Child Support Enforcement (http://www.ncchildsupport.com/). This is specifically what they deal with, and you do not need your attorney to contact them. I’m not sure how your current lawyer would feel about it, but if he does have an order and hasn’t followed through you could also file for contempt yourself.

13

We have an order going forward from March but from December to March, it was only mediation and all I have are the worksheets stating that he agreed to pay NC guideline support. I guess at this point, all the way around, I’m kind of screwed either way. He has achieved what he set out to and that was to basically bankrupt me and make sure I have NO ONE else that I can depend on for help. Fortunately I have my daughters and we don’t live with him any longer and aren’t subjected to his ongoing, continual, habitual, constant verbal, physical, mental and emotional abuse. The girls cry every other weekend when they have to go with him and will text me the entire time they’re gone, begging me to come get them (which I cannot). It’s as frustrating as can be and I can’t get much more hopeless at this point.

Thanks for taking the time to help though. I really appreciate the time you all have taken to respond.

14

Ok, so new question.

My attorney will take his case … for a sizeable fee of course. I can’t pay the bill I have now and with him being out of work, there’s just no way to do this.

We’ll go file for the extension in April for another month but I guess we need to know how to answer these allegations and what we need to do in order to do this ourselves because we just can’t afford an attorney. This has been filed in superior court too and I know it will be better to be represented but there’s just no way to do it.

So how does the answer need to be worded and how do we file the answer? Even though there’s no way for him to win this, is there a way to get this case dropped because this has been filed out of spite.

15

I cannot give specific instruction via this forum, only general advice. The answer should truthfully admit or deny each allegation, and you may make include a motion to dismiss in your if any of the reasons in rule 12 b of the North Carolina Rules of Civil Procedure apply.

16

One last question regarding this …

… I’ve researched and researched over and over. I’ve only found one instance outlining what would happen if the Defendant being sued has no money or property:

"Despite the hefty judgments, these lawsuits are only fruitful for a small segment of the population. If the defendant does not have the money, then the judgment simply cannot be paid. And attorney fees for these types of cases can run up to $100,000.

“The number of people who are good targets for these types of lawsuit is very slim,” Rosen said. “They have to have a lot of money lying around.”

Echoed Ullman, “You can’t get blood out of a turnip.”

Soooooooo, is that to say that if the Defendant gets a judgment against them and has no money, no bank accounts, no employment and owns no property except a $2500 pickup truck, the Plaintiff just doesn’t receive any of the damages that are awarded? If by some miracle the Defendant happens to get some sort of judgment and the Plaintiff is absolutely unable to pay … what happens?

17

That’s the basic principle. If they have nothing you can take, then there is nothing to take. Additionally, there are exemptions to judgments, for example his $2500 truck would be an exemption because I believe the vehicle exemption amount is $3000 or so. Retirement accounts are off limits, and there are additional exemptions for furniture, clothes, housing, etc. These exemptions are in place so that no individual is left desolate if a judgment is placed on them. I believe with a little research you can find the entire list on the wake county court site.

18

And how long does a judgment follow you? For instance, say 5 years down the line he decides he wants to get a new car … would we need to put it in someone else’s name or could he own it? And if he and I get married, can MY property be liquidated to pay for the damages?

19

The judgment will follow him until it is satisfied, any property that he acquires is subject to begin attached.

20

Not only could you move assets under your spouses name to hide things, but I believe a pre-nup can leave your spouse exempt. So there are ways around it. Also, I don’t think you’re obligated to tell the other party you have acquired any assets. I think that burden is on the collector who will have to put even more time, energy and money into the court system and PI’s to be able to know you acquired anything.