Alienation of affection question after separation

Hello - apologies if this post is redundant. looks like my first attempt didn’t go through. I’ll keep it short. I’ve been dating a man who lives in NC. I live in a “non-alienation of affection state”. He is in the process of going through steps towards a separation. His wife knows my name, but does not appear to have any evidence of our relationship. I do not visit NC when we see each other. He comes to my state. Once he is separated, can we date openly (understanding that it’s officially a year to divorce once separated)? Following separation, if/when she learns that he and I are together, can she sue me based upon the assumption that we were together pre-separation, since she knows my name? Bottom line, at what timepoint are we free to date without risk? Thank you so much for your help…and yes, I know dating a married man is stupid…

A recent case stated that NC can have jurisdiction over you even if you didn’t come to NC. If you were communicating with him while he is in NC, that is sufficient.

The law provides a three year statute of limitations: An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.

Thank you for your response. I now understand the jurisdiction. My question is, if they are officially separated with a signed separation agreement, can I date him? Can she still sue me following a signed separation agreement? Currently, they are still married and living together. She knows my name now, although has no evidence of my relationship with him. After separation, assuming we can date, she will likely learn that we are together. Obviously, it will be simple for her to put two and two together and figure out that the woman he was assumed to have an affair with (me), is now the woman that he is dating post-separation. Can she still sue me even though they have a signed separation agreement? Are you saying that she has the right to do this for 3 years?

Let me clarify my follow-up question: Are you saying that she has 3 years to sue me from the last time she has evidence of communication between he and I prior to their separation? All I know is that she knows my name. I don’t know (and I doubt) that she has hard evidence of communication between he and I. He and I primarily communicate through phone (texts and calls). No emails. If the answer is yes, than please help me understand how divorced couples can date anyone for 3 years following their separation without being sued by their ex-spouce. I really appreciate the information your forum provides and I apologize if my questions are not articulated properly and are therefore confusing.

The only way you are protected by a separation agreement is if it includes a third party waiver. If not, she has until the statute of limitations tolls to bring a suit against you.

Thanks to you and your team for helping me and others sort through legal question with this forum. I really appreciate the information.

You are welcome. I’m glad to be of assistance.

Hello - I’m back several months later. My married boyfriend and his wife are working towards a separation agreement. His lawyer told him that putting in a third party waiver would protect me for A of A lawsuit (this is consistent with what I’ve read in this forum). If he choses not to have it included, in order to avoid his wife flipping out and reneging on all of what she has agreed to, how much at risk am I? I understand the 3 year statute of limitations and all that goes along with it. What establishes jurisdiction?? As I mentioned, I live in NJ, he lives in NC. He comes to see me in NJ, but I don’t go down there (actually, I have, but we’ve been far, far away from where they live). We talk and text all the time. Does she have the right to get his phone records, in order to establish jurisdiction? It’s a company phone, not personal. He plans to get an appt near by their current home because his job is still down there. Once the separation agreement is signed, I plan to spend time down there regularly. Is this not smart?

** not an attorney **

I don’t see how the 3rd party waiver would protect you from an alienation of affection claim. The 3rd party waiver would just allow him to date freely during separation. The AA suit would be based upon prior actions during the marriage, and she could still claim AA for him being with you during the marriage and prior to the signed separation agreement. They’d be signing something agreeing to be able to date other people during the separation. If the ex finds out you were involved in breaking up their marriage 6 months or 2 years prior, she could still sue.

What the 3rd party waiver protects you from is involvement going forward – not in the past --it is illegal to have sex with someone during a separation period – the waiver would protect you in this instance.

AA and CC cases cost tens of thousands to pursue, and unless the person being sued has a lot of money to go after, they aren’t worth it. Most people just use them as a threat and a means of bargaining…when push comes to shove, they are simply too expensive to purse and very few award judgements of anything significant.

Incorrect – 3rd party waivers can protect you from pre and post claims.

*Not an Attorney

Going to have to disagree with you both:

The standard 3rd party waiver about dating will not protect you from acts prior…It only protects him going forward in dating, but it does not protect her from an AOA suit for dissolving the marriage. Language CAN probably be written into the agreement that in lieu of concessions monetary or otherwise, an AOA suit won’t be pursued, but if the wife is feeling scorned, good luck with that one.

3rd party waiver will not protect you from a CC suit. 3rd Party waiver allows for dating, but does not insulate against the criminal act of adultery. No matter the language in the SA, having sex with someone else before being divorced is still a criminal act in NC and is still subject to a CC suit as I understand the laws.

So, there’s three varying opinions…will be interesting to hear from the experts :slight_smile:

Kathleen already responded… see above.

“The only way you are protected by a separation agreement is if it includes a third party waiver.”

CC is still a CIVIL torte, not a criminal action and is brought by the spouse against a third party. It can indeed be waived. The only criminal action is adultery and it is highly unlikely the state of NC is going to pursue.

I possibly stand corrected…Good to know

A good third party waiver should include prior acts. An example:

Each party waives and releases to the other, any other claims which he or she has or may have against any other person under the law of this State or any other State for alienation of affections, criminal conversation or any other type of action which may be allowed as the result of any relationship between the other spouse and any third person. It is, therefore, specifically understood and agreed that any third person, against whom such legal action is brought by either Husband or Wife, may plead this provision, as a third party beneficiary, in bar of any such claim.

I’m back once again…here is another question for you. My married boyfriend and his wife have their divorce terms in a lawyers hands to draw up (her lawyer). They are still in the same house and are really, really mad at each other and in my opinion both are doling out their share of emotional abuse (it’s bad!). As the terms are outlined, she will get the house in the agreement, so he will be moving out. He claims that he loses leverage in negotiations if he leaves the house before the separation agreement is signed. They have kids, but kids are 19 and 23 yrs old. Is this really true??? Why would he lose any negotiation power? In my opinion, when 2 people are getting divorced and no kids live at home, it’s a much better scenario all the way around, if they live separately so they are not constantly fighting. Your thoughts?

I think that remaining in the same residence when both parties want to separate causes them to more easily reach a conclusion. If possible, I always advise my clients to stay together until an agreement is signed.

Hello again - I appreciate your help in continuing to sort things out. The way things stand now are that my married boyfriend moved out of the residence on September 1st. This date is referenced in their draft separation agreement. He has been renting a town house and I have been visiting from NJ for long weekends. When I express concerns about AoA, he says, “we are separated, and because I have left the residence without any intent of moving back, we are both clear to date”. So here are a few questions. Can she sue me for acts that occurred AFTER he moved out on Sept 1? Are they indeed free to date freely even though the agreement is not signed? He is not paying her alimony and has admitted that he will delay as long as possible because he’s convinced that she will co-habitate or remarry soon. I personally think this is a stupid strategy, but am only really concerned about my risk in the whole thing. So as it stands now, they are living separately and have not officially split their assets or signed the agreement. They have an alimony amount drafted in the agreement, but since the separation doc is not signed, he is not paying it. I visit him and he visits me regularly. I’ve met his friends and feel that it’s only a matter of time before she knows about me (and when she connects the dots, she will realize that we were involved while they were (very unhappily) married). For what it’s worth, there is language in his draft agreement that supports either party not being able to sue a third party for AoA…(I think there was something about if she sued then she would forfeit financial support from him - maybe not, but I seem to recall their being a statement about this…). I am so incredibly disappointed that he won’t just be done with it all and sign, but he claims it’s of no risk to me as it stands now. The plan is for me to move there permanently this fall. What if the agreement is not signed by then?

Not a lawyer

"Can she sue me for acts that occurred AFTER he moved out on Sept 1? "

I believe that if (1) the relationship existed prior to their separation date and (2) she has sufficient evidence to support an AOA/CC claim, that she has the potential for a valid claim.

AOA/CC cannot be pursued if (1) the separation has occurred and (2) the relationship began after the separation date.

Good luck.

Post-separation acts can be used to corroborate pre-separation acts, so you need to be careful about exposing your relationship if you move down and he does not have a signed separation agreement yet.