My husband and I legally separated on March 3, 2012. I moved back in on August 2012. He made me move back out on November 3, 2012. He started a relationship right away with someone else. It was after I left, but like I said, he told me I had to leave or he was going to move me out. Anyways, he has been have a sexual relationship with her. He has even had her overnights with his daughter at home (my step-daughter, who is 15 years old). Is there anything I can do legally about this?
Not an attorney*
Based on the brief information you’ve provided, you could sue for criminal conversation if you have proof that they are engaged in sexual relations. CC lawsuits are applicable until such time as you are divorced, not just separated. I doubt you could sue for Alienation of Affection as it was pretty clear that ‘love was lost’ in this marriage before this particular individual consorted with your husband. In either case, both lawsuits are very costly, and unless he’s well off with assets to pay a judgement, generally not worth your time. However, it could be used as a negotiation tool in your settlement.
Lastly, if you have not drafted a separation agreement, you could put language in the agreement barring your husband from having over-night visits from people of the opposite sex when your daughter is at his residence. However, you have a legal issue, in that unless you have adopted your daughter, as a step-mom you don’t have much legal standing to dictate her care, especially after the divorce. That’s a wrinkle best answered by a professional.
What kind of proof do I need to be able to use Criminal Conversation as a negotiation tool? How should I go about getting the proof?
You can either have direct proof such as testimony (he admits it) or physical evidence (video/photos). That’s usually not the case, so then you would have to show inclination and opportunity. That varies widely from judge/jury for these trials, but you are generally trying to prove that opportunity was available (they sleep over together and you have proof) and the inclination exists (they say they are in love…maybe you’re daughter has heard them).
I don’t believe wcom is correct. You can no longer use actions after the date of separation to support a criminal conversation action unless they are used to corroborate actions occurring prior to separation.
Perhaps an attorney could clarify?
I’d be interested in clarifcation, because it’s my understanding from responses by attorney’s here that CC claims are civil claims due to the act of adultery which is defined by sexual intercourse during marriage. Until you are divorced, you are still married, and having sex while separated is still adultery.
EDIT: I stand corrected…The law changed Oct, 2009 for CC…If the act occurs after separation, then it is not actionable.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2009-400
HOUSE BILL 1110
AN ACT TO CLARIFY PROCEDURES IN CIVIL ACTIONS FOR ALIENATION OF
AFFECTION AND CRIMINAL CONVERSATION.
The General Assembly of North Carolina enacts:
SECTION 1. Chapter 52 of the General Statutes is amended by adding the
following new section to read:
"§ 52-13. Procedures in causes of action for alienation of affection and criminal
(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.
(b) An action for alienation of affection or criminal conversation shall not be
commenced more than three years from the last act of the defendant giving rise to the cause of action.
© A person may commence a cause of action for alienation of affection or criminal
conversation against a natural person only."
SECTION 2. This act becomes effective October 1, 2009, and applies to actions
arising from acts occurring on or after that date.
Sorry for the confusion.