Live with opposite sex during separation

North Carolina Divorce Law Divorce and Separation Answers
1

So I’ve been unhappily married for 2-3 years now. I’ve been waiting for the kids to get older before I leave and divorce. I have 3 boys
oldest is turning 20. So no child support here
middle will be 18 in June. But he is still in High School, so Child support for a year
youngest will be 15. So child support until 18.

Last Sept I met a woman. She knows I’m married and nothing could happen. She also knows I’m unhappy

After first we met every other week at Starbucks for coffee. We would talk about 1 hour, then she would return to work.

She is Chinese and in Nov she went back to China with her son for 3 weeks to visit her mom and dad.

I seen her 2 more times for coffee before the end of the year. We talked a lot about my unhappy marriage and she listened.

Since the new year we have had coffee once a week now.

Well, we are starting to fall in love.

She has a 1 bedroom apartment she lives in with her son. Her lease is up the end of this April.

She knows I want to leave my wife, but in NC I need to be separated for 1 year before I can divorce and I can not afford to live on my own. So we thought about a 2 bedroom apartment.
This way it’s easier for her and also easier for me.

If I legally separate and move out and share an apartment with her during my separation, can I get into trouble?

I can not survive on my own, and we known each other 7 months now and she know’s my situation. She knows it will be a year until I can divorce and she is okay with it.

Any advice…

2

You do realize you are heavily involved in an emotional affair, right? I make that comment because in terms of the law, it’s not only about physical affairs.

Not an attorney

Until you are divorced, NOT SEPARATED, but divorced…You will be committing a crime in the great state of NC by shacking up with this other woman…Adultery. Is it prosecuted? Not often…but it is a crime, nevertheless. Also, until you are DIVORCED, your wife can sue your lover for criminal conversation each and every time you have sex. Because, it doesn’t matter if you are separated, only divorced.

Now, here’s the wonderful kicker…You also just opened your lover up to an Alienation of Affection lawsuit. Because it is obvious that your affair (doesn’t have to be sex, just the attention), has caused you to alienate the affections to your wife.

Your separation agreement can contain language that frees you up to date whoever you want, and her too, but it’s too late to avoid an AOA suit, and a CC suit can be brought on actions you commit until you are DIVORCED, regardless of the SA language.

3

Moving in with her is NOT a good idea. wcom is correct in that you will very much be opening her up to a possible action for AoA and CC. These suits could also be used as leverage against you during asset distribution. Adultery is rarely prosecuted, however it’s generally unwise to date during separation because of the AoA and CC issues.

Even though this person may not be the reason you are leaving your marriage, it can be easily construed that way. It can make the divorce process very difficult if one spouse feels scorned.

4

I have to disagree that it’s Adultery.

Alienation of Affections – The elements for alienation of affections are: (1) A marriage with love and affection, (2) which is destroyed by, (3) the wrongful acts of a third party. So, although the typical AA case involves adultery or marital infidelity, any intervenor can be liable as long as the elements are present.

Was or is my marriage being destroyed by a third party. NO. I’ve been unhappy for 2-3 years now. Long before I met this person. She is only a means for me to live separately and be financially secure still

Criminal Conversation – The elements of criminal conversation are: (1) A marriage, (2) sexual intercourse with a third party. So, unlike AA, the third party can only be liable if there were actually instances of extramarital sexual contact. However, criminal conversation appears to have no requirement that the affair actually destroy the marriage.

Have we had sex. NO. All we’ve done is have coffee and talk.

And If I’m not happily married why should I remain married because I can’t afford financially to move out. If I have that opportunity I should take it.
I’m not going to just abandon my kids.
I will pay the Child Support
I will pay her Alimony
I will give her the house, and pretty much everything within it minus a few items of mine
And I will make sure she get’s 1/2 of my 401K

Most people would fight this. I want to make sure she is also financially secure.

What gives the state the right to tell me if I’m not happily married, I either need to remain married since I can not afford to leave, or B, I have to first be legally separated for 1 year, and I am not allowed to see anyone.

5

Never said that you have committed “Adultery” to this point. You have had an affair, which is defined as inappropriate contact with someone of the opposite sex. I would say it is inappropriate because I doubt your wife is aware of this contact and would not approve. If you move in with the other woman and have sexual relations prior to DIVORCE, then you would be committing adultery at this point.

[quote]
Was or is my marriage being destroyed by a third party. NO. I’ve been unhappy for 2-3 years now. Long before I met this person. She is only a means for me to live separately and be financially secure still [/quote]

You will have a VERY difficult time arguing this to any judge/jury. By your very statement, she is providing an escape for you from your marriage by offering a means of being financially secure. That’s alienation, because without said security you may not be so inclined to leave your marriage. Don’t be hung up on the sexual connotations of AOA…AOA suits are much broader in their definitions of what constitutes alienation. It’s not just sex.

[quote]
Have we had sex. NO. All we’ve done is have coffee and talk. [/quote]

Again, re-read our posts…noone accused her of being guilty of CC…yet. However, if you move into a residence with this other woman that you’ve been seeing without your wife’s knowledge or consent, then it is not a far leap to assume that you might have sexual relations with her. At that point, she would be guilty of CC, until such a day you are divorced. And your wife could sue her from the last occurrence of sex + the statue of limitations (3 years for CC).

[quote]
And If I’m not happily married why should I remain married because I can’t afford financially to move out. If I have that opportunity I should take it.
I’m not going to just abandon my kids.
I will pay the Child Support
I will pay her Alimony
I will give her the house, and pretty much everything within it minus a few items of mine
And I will make sure she get’s 1/2 of my 401K[/quote]

You asked if there were ramifications to moving into with her. The above has no bearing on CC or AOA…Whether you deem yourself a ‘good’ guy for financially providing for your wife or children, has no bearing on the potential to be involved in an AOA or CC suit. Bottom line, it’s a horrible idea to move in with this woman until you are DIVORCED.

[quote]
What gives the state the right to tell me if I’m not happily married, I either need to remain married since I can not afford to leave, or B, I have to first be legally separated for 1 year, and I am not allowed to see anyone.[/quote]

The legislature gives the state the right due to the laws on the books. Noone says they are good laws, or fair laws, but they are THE laws and we all have to abide by them.

6

I would also point out, AoA suits are jury trials… so it’s whichever “team” paints the more convincing picture. Though I have heard you, and understand you are unhappy, it’s pretty easy for an opposing attorney to claim you were happily married and left for this other woman. I know that’s not your intent, but it’s easy bait for the other side.

Do you have other friends/family you could stay with?

Lastly - though I may not be accurate, I think should your wife find out about this relationship she could get Divorce from Bed and Board and essentially kick you out of the house.

7

[quote=“EndoftheLine”]

Lastly - though I may not be accurate, I think should your wife find out about this relationship she could get Divorce from Bed and Board and essentially kick you out of the house.[/quote]

If his assertion that no intimate contact/sex has occurred is true, then while he may be guilty of infidelity, he is not guilty of adultery by the way I read the statutes…Therefore, accordingly, she would not be able to obtain Divorce from Bed and Board:

[From Rosen’s FAQ]
The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery

8

Having sex with another person while married is a crime, so yes, you could get in be charged criminally. I also concur with the statements that moving in with another woman will open her up to an alienation of affection claim and a criminal conversation claim.

9

If I’m reading this statute right how can it open anything up for AoA or CC? Right now nothing has happened between either of us and nothing would occur until I am separated. And based on the statute it says no act can cause and action after physically separating.

Statute 52‑13. Procedures in causes of action for alienation of affection and criminal conversation.
(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remain permanent.

10

Because these cases can be VERY subjective. They are not black and white.

I would use this example that we’ve all seen on TV: A guy shows up at his friends house… finds friend dead on the floor with the murder weapon right next to him… in his shock he picks up gun, police show up and he’s sitting over the body with the gun. Though he didn’t kill the guy, his prints are on the gun. It looks really bad and all you need is some attorney to paint a bad picture.

Your wife could easily say you two were happy as clams and she had no idea that your marriage was in trouble, and that if the other woman wasn’t around then you two would have worked things out. She could use the fact that you moved right in with her to “win” her argument. It’s a mess that I would avoid.

11

I stand by my previous assessment. Just because the likelihood of success on an alienation of affection claim seems far fetched, does not mean that you aren’t setting your new girlfriend up for a potential claim.