Interference and alienation of affection


#1

Hi, so I am recently separated, 4 months, and my soon to be ex is dating and sleeping with someone. They both keep telling me that i am in breach of the separation agreement because I called them out on it-- Interference. Husband and Wife each shall be free from control, direct or indirect, by the other, as fully as if he or she were unmarried. Neither party hereto shall hereafter in any way interfere with the other, directly or indirectly, nor compel the other to cohabit with him or her.— North Carolina law stills says that we are legally married until the divorce is finalized. Did I breach the agreement by calling them out and is there anything I can do to change the agreement we have in place for alienation of affection.


#2

A separation agreement cannot be modified unless there is an amendment provision in your separation agreement, and if so, both spouses must agree to the modification. If you want to pursue alienation of affection, your separation agreement would not need to be modified.

Alienation of affection only applies for events that happened during the marriage which caused the love and affection between you and your spouse to be alienated. If your spouse started seeing someone during the marriage, which led to the separation, and there is no third party waiver in your separation agreement, then you likely still have a valid claim for alienation of affection against the other person.

If your spouse started seeing someone after the separation, the separation agreement allows you and your spouse to live peacefully and without the interference of the other so that each of you can make decisions freely and individually, even if you are not divorced yet. You were likely in breach of the interference clause in your separation agreement depending on what you communicated to your spouse.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

Can agreement be made between husband and wife for mutual waiver of AofA in NC? this is for people in so called Open Marriage/relationship.


#4

Yes, when Husband and Wife are separating and they are negotiating a separation agreement and property settlement, they can agree to include a general third party waiver which would prevent either party from suing a third party for alienation of affection or criminal conversation.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

Thank you Anna. The question was when a couple is NOT going thru a separation or Divorce, but are in Open Marriage. Although mutually agreed situation, as a precautionary measure can a waiver agreement be put in place between the two which is legally recognized, for not holding each other accountable on AofA and affecting aspects such as Child Custody, support, property division and alimony when they do decide to Separate/Divorce. As its known, the proven offending party will get dinged on all those other aspects.


#6

The two spouses can enter into a postnuptial agreement which is an agreement made while the parties are married but not yet separated.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#7

Thanks again Anna, Do you guys help in drafting and executing such agreements or is there a standard form that should be used?


#8

There is no standard form for a postnuptial agreement. Rosen attorneys do handle postnuptial agreements.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.