Confusion of AA Statute of Limitations

North Carolina Divorce Law Divorce and Separation Answers
1

I have a tricky question about the statute of limitations in an alienation of affections case. Consider these facts:

  1. A wife spends a few weeks visiting her parents out of town from January 7th, 2006 until January 21st. She returns home to her husband.

  2. The wife tells her husband on February 1st, 2006 that she is going to visit with her parents for a few more weeks. The husband does not know that the wife is making plans to leave him for good.

  3. After the few weeks are up, the wife says that she needs “time apart” to think things through. She continues to insist that she doesn’t want to divorce and just needs time to “think”.

  4. However, on March 1st, 2006 she reveals to her husband that she has been having a sexual affair with a man for the past year and claims that the couple’s newborn child is the biological offspring of the paramour. She says that she needs more time to think. The emails exchanged by the couple during this time indicate that the separation is temporary.

  5. Later, the couple decides to divorce. In trying to decide which date to use to count as the official separation date, the couple chooses to use the date of January 7th, 2006. The divorce is therefore finalized on January 8th, 2007.

  6. Approximately 2 years later, on January 29th, 2009, the husband files an alienation of affection/criminal conversation suit against the paramour.

My question is: from which of the following dates does the 3 year statute of limitations clock begin counting?

If the statute of limitations is based strictly and inflexibly upon the date of separation, January 8th, 2006 - then the husband missed the deadline to file the case by a few weeks.

The complication with this scenerio is that the couple filed for divorce based on the wrong date because they were not living separate and apart continuously from January 7th, 2006. The husband possesses emails between him and his wife discussing the problem of which date to use because they weren’t living separate and apart continuously until February 1st.

However, if the statute of limitations begins based not on the date of separation but on when the husband discovered the affair, then the statute of limitations would start on March 1st, 2006 and his lawsuit for AA/CC would have been filed in time. Likewise, if the true separation date of February 1st is used (as can be established by the couple’s email correspondence) then the husband filed within the proper time.

What I am confused about is this… I have read that judges often use the alimony entitlement statute [N.C.G.S. § 50- 16.1A(b)(1)] in AA/CC cases. The alimony statute basically says that only things that happen before the date of separation can be used to justify alimony. This means that in an AA/CC case nothing matters following the date of separation, including the discovery of the act by the husband. But in the situation with this husband he did not know about the affair until after the date of separation.

I have also read, though, that determining the statute of limitations is up to the discretion of the judge.

So which is it? In this scenerio when did the husband file a claim in time or not? Is the statute of limitations firmly fixed on the date of separation in NC or is it up to the discretion of the judge?

Thanks.

2

The statute of limitations for an alienation case is 3 years from the date the affair was discovered; the date of divorce is not relevant.

With respect to that statute you cite, a case came down from the Court of Appeals is 2006 which says that any post date of separation conduct can be used to prove that an affair actually began before the separation.

The husband in this case did file in time, and will likely use the McCutchen case to use the pre-separation behavior to bolster his claim.

3

There has also been some past case law (within the last 5-7 years or so) that states that the date when the alienation is considered complete is when the clock starts ticking. Therefore, claims can be made from the date that the last final break with the spouse. The idea being that alienation doesn’t take place in one moment, but accrues over time.

4

I also read some case law to the effect that AoA statute of limitations can start when the “alienation is complete”, i.e. when the spouses’ reconciliation fails finally and they separate. The appellate judges ruled that they did not want to discourage couples from trying to reconcile. But, I bet it is easier if you just file within 3 years of the date of discovery.