It is true that he can use the emails as proof of “marital misconduct” and yes, they could be used by his attorney to leverage a lower or zero alimony amount. The fact that he “forgave” her and stayed might help a bit, but in the end, if he can present a convincing case that her misconduct wrecked the marriage, than yes, it could affect the settlement in his favor.
Also, no this is NOT considered “adultery” since no sexual acts occurred. Is is termed maritial misconduct.
What about the fact that he started having sex with someone else before they separated. Only after he started seeing someone else, then he decided to leave. So how does that change things?
I also wonder how strong of a case could he have for marital misconduct if he did not leave until two years after the incidents. I thought I read on a website that once he took her back and continued on with the marriage, then he was in turn forgiving her for any wrong doing. He did not leave until after he started messing around with someone else. I must have read it wrong
quote:
[i]Originally posted by daddysgirl[/i] [br]What about the fact that he started having sex with someone else before they separated. Only after he started seeing someone else, then he decided to leave. So how does that change things?
If she can PROVE that he committed adultery while still married to, and living with, her, then he case is much stronger for winning alimony. However, if all she has is an allegation with no concrete proof, while he has the emails, a judge may suspect she made up the accusation of his infidelity in order to bolster her claim.
Actually, from the responses I have read on here from the attorneys, since he did not end the marriage immediately upon finding out about this, he essentially forgave her and has no claim. I do not know what the time bracket is for this, a week, month or longer but I do know that unless he found information of a new “relationship” there’s not a whole lot he can do, and his attorney, if he’s been honest with him would tell him that.
He may have some basis to use these in court but with his knowledge of these for that amount time, he is basically gave his consent. It is not considered adultary without and actual sexual act.
Now, as far as the alimony goes, here’s the definition of “Marital Misconduct”:
"3) “Marital misconduct” means any of the following acts that occur during the marriage and prior to or on the date of separation:
a. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse;
b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
c. Abandonment of the other spouse;
d. Malicious turning out-of-doors of the other spouse;
e. Cruel or barbarous treatment endangering the life of the other spouse;
f. Indignities rendering the condition of the other spouse intolerable and life burdensome;
g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
i. Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome."
“A party defending against an action that includes allegations of marital fault also has certain common law affirmative defenses to the fault allegations. These defenses have technical names: condonation, connivance, collusion and recrimination. The most commonly used of these defenses is condonation, which stands for forgiveness of the particular fault. For example, if your spouse has engaged in illicit sexual behavior with someone else and then you have sex with your spouse knowing about the illicit sex, in the eyes of the law you may have condoned the fault”
Now, with all this, your friend’s STBX may have a case of alienation of affection towards the last man your friend had e-mail conversations with but unless it was right at the time of separation it will be difficult for him to prove that this is what led to the separation. I don’t think she has anything to worry about. She needs to not let her STBX intimidate her and quit playing defense. Her job, if this goes to court is to show that it is in the best interest of the children for her to have custody.
You were right about NC being no fault state. The only two grounds for divorce are one year and one day separation and incurable insanity. Almost every divorce could involve a 3rd person if you get down to the details and the courts know this. If he tries in court to say that her e-mail conversations with a male friend almost 2 years ago caused him to leave the marriage, the judge is likely to know that this is just an excuse. If she has ANY proof of his affair, she had better gather it together. Record phone conversations with him. See if he will admit to her that he started the affair before he left her and get it recorded…She doesn’t need to let him in on that she has it, maybe just reference that he’s not the only one with ammunition. He may only be trying to scare her into signing something so he doesn’t pay alimony and so she will give him custody…just a thought. Hope this helps.
Thank you stepmother, my friend says that really helps, because she is scared out of her mind. Could he only use the emails to stop her from getting alimony. I read that that is the only time marital fault may be brought up in an absolute divorce case. Could he actually use this in a custody case. She is not worried about alimony but she does not want to lose custody of her children or the child support. He never wanted her to work during the marriage, so now she has to work. With that and the CS she is making ends meet.
Dear daddysgirl:
Greetings. There is no fault in NC to get a divorce, but fault is an issue in alimony and may be an issue in the custody matter, though not generally. In the example though, the fault was condonned and therefore he is unable to use it against her for alimony. Now, if she is again talking to other men, then she may have revived her former fault and it can be used against her. Hopefully she will learn to stop, leave, and then start another relationship in the future. Thank you.
Janet L. Fritts
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
No she is not talking to other men nor has she since the email conversation back in 2004. If someone else has read this please respond so that I am understanding this right. Even though she typed up an email but never sent it to a man and her husband never left; She turned around again and typed emails again and they still stayed together, only after two years he left, He cannot use these against her. I think this really helps her.
quote:
[i]Originally posted by daddysgirl[/i] [br]No she is not talking to other men nor has she since the email conversation back in 2004. If someone else has read this please respond so that I am understanding this right. Even though she typed up an email but never sent it to a man and her husband never left; She turned around again and typed emails again and they still stayed together, only after two years he left, He cannot use these against her. I think this really helps her.
Yes, he CAN use these against her.
His attorney can and probably will argue that forgiveness is not an on/off switch. It may be stated that he tried so very hard to forgive her, but the feelings of betrayal don’t magically go away, especially when she did it AGAIN. And that he tried for 2 years to find a way to trust her again, but could not.
Bottom line is that if her behavior wrecked the marriage, she may very well lose both alimony and custody.
NCSpouse78, I was referring to the comments from the attorney, yes she said they could be used against her in alimony and custody, though not generally in custody. The attorney said that since the fault was condoned then there is nothing he could do about that. Bottom line is he never left her after the first nor the second time and had her living like they were happy still. He left only after he started seeing someone else and he took it beyond what she did. He could not have felt that betrayed if he waited two years to leave and he started seeing someone else. She knows what she did was wrong, but wanted to work things out and she thought that is what they were doing. How could he wait after two years to leave?
Reading the attorney response here I’m understanding this to mean that he can not use any of this against her. They could only be used if he has found RECENT e-mails that caused him to leave, but even then it is unlikely to be able to use these for custody only alimony. I don’t think that your friend has anything to worry about. Your friend was at fault, but he condonned that fault. If he wanted to use that to gain custody of the child/children or to get out of paying her alimony then he should have done that when the e-mails were discovered. Basically, he waited to long to use them now.
Thank you stepmother!!!
Stepmother, I agree that in general that would be true, but it doesn’t take into account the way a very good attorney on the opposing side could present her behavior.
In my opinion, she should not assume that her past misconduct won’t be used against her successfuly if he has a good lawyer. Not saying it will, or that he will automatically win, but she is far from “not having to worry about it”. Just my 0.02
ncspouse78 did you even read the lawyers comment, he cn’t use these because he condoned the fault, bottom line. He can say he felt betrayed or whatever, the fact remains if he tries then she can counter with the fact that he committed adultery, which is why he left, after his affair. He may have been hurt, but he should have left then, not TWO years later.
quote:Like I said, it all comes down to who has the best lawyer. Justice is far from blind.
[i]Originally posted by daddysgirl[/i] [br]ncspouse78 did you even read the lawyers comment, he cn't use these because he condoned the fault, bottom line. He can say he felt betrayed or whatever, the fact remains if he tries then she can counter with the fact that he committed adultery, which is why he left, after his affair. He may have been hurt, but he should have left then, not TWO years later.
Not sure that I understand what is going on here, but to try to help:
If a spouse has an affair that is provable (or some evidence exists of it), then that can be used against them in an alimony trial.
If a spouse has an affair, but the other spouse continues to reside in the home with them for some time after the affair occurs, the spouse cannot use the evidence of an affair against the cheating spouse because they condonned (or forgave) their affair. The only time they could use the information was if the affair started again after the condonation or a new affair started after the original affair was condonned.
Good luck.
Janet L. Fritts
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
Well Janet, My friend wanted to know about this. She attempted to write send an email to someone. It was never sent. Her husband found out and never left. A month later he found some that were sent, he forgave her for it, they lived together still, even moved out of state for awhile the two of them with their children. She never had a sexual relationship with anyone. Two years later he says that he couldn’t handle it and he left only after he started talking to someone else. She does not have proof of his actual affair as far as pictures, but has phone records and seen text messages he sent to the other woman. Soon after he left he moved in with this other woman.
Question: Can he use the emails against her in a custody or alimony case if he never left his wife after the emails? He did not leave until two years after the email incident.
Wow, this is quite the post.
Generally, the fact that one spouse has had an affair does not have an impact on custody. It may if the there are particular facts about the affair that make it more damaging to the children.
The emails will probably come up but given how long ago the incident happened it is likely she will be able to prove that her spouse condoned the relationship.
Hope that helps.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
Hi, I am posting this for my friend who going through a divorce much different from mine. Her husband found an email that she attempted to send to another man. It was never sent. He confronted her about it, they never separated, he decided he wanted to stay married. He later broke into her email account and found some emails where she was conversing with another man. Nothing ever happened, whe never had sex with the man or anything. He forgave her again and wanted to continue with the marriage. They even moved out of state for a while, then a year and a half later he decides he wants to leave because of what she did. He could not get over what she did. Now it has been almost three years and he has threatened to use those emails against her in the custody hearing and the divorce. I thought there was a no fault law in NC. Could he use these against her three years later even after he forgave her, never left and continued on with the marriage. Is this considered adultery or does there have to be a sexual act involved? Please help she is scared out of her mind that it is going to hurt the child support and alimony if she gets it.