I want to file for divorce because it turns out that my wife has been having an affair with someone over the internet. If I have copies of some of the emails can that be used in court as “criminal conversation” that I was told about? They go into lengthy details and she very bluntly writes what she feels with regards to me. I am the only one working and we have two young children.Does any of this count towards anything or should I just file for seperation then divorce?
If you have copies of the emails that were obtained legally and demonstrate a sexual relationship between the two of them, then you should be able to use them as evidence to deny her request for alimony. (N.C.G.S. 50-16.3A says that if the dependent spouse had an affair, that spouse is barred from receiving alimony.) You may also use them to prosecute the other party for AA/CC if any of the sex took place in NC.
What would be deemed legally obtained? Would I have to use a computer monitoring program on a computer that I own,or what if she left her email open and forgot to close it out and the messages were in plain view?
Legally obtained would be if they were sent to you or given to you. The computer monitoring program would not be legal as you didn’t have her permission to access those files, even though they were on your computer (joint marital property) as she had a reasonable expectation of privacy when they were sent. (Just as wiretapping 2 other people talking isn’t legal for the average joe.) As far as if she left her email open and forgot to close it, then yes, I believe you can make that argument for at least that one email on the screen. However, it’ll end up as a he said/she said, if she chooses to dispute that the email was left open.
You cannot file for divorce until you have been living separate and apart from your spouse for one year and one day. North Carolina is a no fault divorce state which means that adultery is not a grounds for the divorce.
Your wife’s adultery can be used to bar her from seeking alimony if she is the dependant spouse, and you can prove that an affair has occurred. The emails you have can be used in court as evidence of the affair, however criminal conversation is a claim that is not tied to your separation and divorce. Criminal conversation is what we call a third party action. It is a civil action in which you can pursue your wife’s paramour from money damages for having sex with your wife.
As between you and your wife, once you are living separate and apart, you can file suit for Equitable Distribution of Property, Child Custody, Child Support and Alimony (if you are the dependant spouse). There is no legal separation in North Carolina, separation is merely the time period you no longer live together.