Questions about divorce with proof of adultery

North Carolina Divorce Law Divorce and Separation Answers
1

My wife and I have been married for almost 5 years. About 3 weeks ago, she said that she wanted a divorce out of the blue. I didn’t even see it coming, although I should have as I had seen an email a while back stating that she was going to leave me after she graduated. When I confronted her about it, she said she wrote it when we were fighting really bad. I believed her as we had had a rough patch about a year ago, and let it go.

Although I did not want her to leave, I agreed. I want her to be happy. We agreed that she would continue living in our house until she found a job and a place of her own since she just graduated. However, we wanted to avoid each other as much as possible. So, we also agreed that I would spend three nights a week at my brother’s house while she stayed at the house with our two kids, ages 1 and 3. In addition, she stays away at a friends house as often as possible to allow me time with the kids at home.

Over the last year, she has been drinking a lot. Our friends tell me that she is an alcoholic. I guess I didn’t even notice. I thought that she was just having fun with her friends. She has always had sleeping issues and so she takes Ambien. Recently, I have noticed that she has been taking her sleeping pills and then polishing off a bottle of wine. I notice this because she is decreasingly involved with our children and I find myself coming home from work, cooking dinner, feeding the kids and putting them to bed. This is no big deal to me as I love my children and will do anything for them. Also, I had been doing it while she had been going to school. She has since graduated and does not work.

A few days after graduating, she asked for the divorce. She is still not invloved with the kids and goes out partying every chance she gets. Two days ago, I got on my computer and found her email had been left open. With no intention to snoop, I saw the first email in the inbox with the subject line, “Babe.” Of course, I knew she hadn’t emailed me so I read the email. WOW! She has been having an affair for the last 3 months. I REALLY did not see this coming and I felt/feel like a fool. I am a Staff Sergeant in the Marine Corps and this man is a Lance Corporal who is married as well. He also deployed a couple days after she asked for the divorce. My first thought was to print this email. I forwarded it to myself as well, just in case I did not have the unfortunate luck of her leaving her email open again. As I read the email, they talk about their plans for the future, how they will be the best church going family (my children’s names are included), He has talked to my daughter on the phone, met my son, they talk about how they don’t care what rank I am…etc, etc. The thing that stuck out the most was a line that said, “I miss having sex with you” from her, and a response of “I miss ****ing you too.” In the same chain of emails, he says something along the lines of “don’t ever scare me like that again…I worry about you.” Her response, “I know you don’t like it when I take sleeping pills and drink. If you want, I won’t do them together anymore.”

I have now done much more snooping and found comments on myspace between her and him and her and his parents and siblings. At this point I have over 50 pages of proof of a relationship with only the one email with admittance of sexual activities. So this leads me to my questions.

First, is the way I obtained the first email illegal? I did not break into her email. She left it open, and my thought is that seeing she is still my wife (not even legally separated and residing in the same home) and it is my computer…I should be allowed to view and use this information. Right?

Second, with this proof of illicit sexual activity, are we still required to be separated for a year prior to divorcing?

I want custodial custody of the children. With proof of adultery, admittance of abusing medication and alcohol, and lack of employment, what are my chances of obtaining custodial custody? And, can I demand minimal visitation until she can prove herself as a safe caretaker of them? I am afraid to leave my children at home with her for too long. Recently I came home and she was passed out while my 1 year old son was in his crib screaming with a dirty diaper. All the while, I have been at work all day and I have no clue how long he was left like this. My 3 year old daughter has apparently learned to sustain and entertain herself while I am away and her mother sleeps as she was sitting on the couch with a bag of chips watching Dora. I do not know how long this has been going on or how often it happens.

What will she be entitled to in a divorce? Both of our names are on the title of the house, however, I am the only name on the loan. I would like to keep the house as I am the only source of income and pay the monthly mortgage.

When legal separation is filed, am I still responsible for helping her financially while she is unemployed? May I remove her from my back account so that she does not have access to my money? I have been helping her out by paying for her gas (apparently to see her boyfriend) and her car payment. I am also allowing her to stay in the home as she said she wants to be the one to move. But, she also thinks that it is okay to continue getting her weekly pedicures on my dime.

Is there a way to remove my name as a co-signer on her vehicle? I do not want to continue making her payments but know that if I don’t, she will more than likely default on her payments, leaving me with a bad mark on my credit and having to make the payments anyway.

So many questions going through my head. I will stop here for now. Any help to get me going would be great. I am so lost and unprepared for all of this. I know she has been talking to an attorney but at this point, she has no idea that I know about the affair, let alone have proof. Thank you!

srk

2

I almost forgot an important one. Are the comments below, found in the email, really enough to prove adultery and that she may be unfit to maintain primary or custodial custody?

The thing that stuck out the most was a line that said, “I miss having sex with you” from her, and a response of “I miss ****ing you too.” In the same chain of emails, he says something along the lines of “don’t ever scare me like that again…I worry about you.” Her response, “I know you don’t like it when I take sleeping pills and drink. If you want, I won’t do them together anymore.”

Thanks

srk

3

You have many questions. First of all, do you want to divorce her? Is she dependent on you…meaning, do you make more money than she does?

You apparently have proof of adultery on her part. Save that stuff. There is nothing illegal about you going into a computer that you own!

All that you have going for you is that she committed adultery. If she is dependent, then you will not have to pay her alimony.

As far as custody is concerned, do you want sole custody of your children? If you do, you may possibly be able to get that although the Court would require that you prove her an unfit mother. That is hard to do even with the drinking and the sleeping pills.

Do you want to drag this through the Court? It’s easier to come up with some sort of agreement without involving the Court.

My advice. If you want a divorce, get a divorce. Negotiate for as much as you can. Marital property is property accumulated during the marriage with her having as much right to it as you do.

Remember. Divorce is nothing more than dividing the property and deciding how much time each gets to spend with the children. That is all it is. Lawyers are there for what they can get out your misfortune.

4

Your first question was a tricky one. Do I want to divorce her? At first, no. I loved her. I begged her to stay. I did not see this coming. I was very happy. Now that I have found all of the emails and messages, I don’t think that a divorce could come soon enough. When I first obtained the proof, I was shocked, disgusted, and more angry than you would believe. Surprisingly though, it has only taken two days for this to sink in and my focus is on my children. It has taken all of my self control not to confront her with it, as we are still residing in the same home. I just don’t want to give her the opportunity to cover up or destroy this evidence.

Although not all my questions were answered and I would still like them answered by an attorney, I appreciate the advice. However, you said that marital property is property obtained during the marriage and she as equal rights to it. With proof of adultery, she has broken our marriage contract. Many may not see it that way but my life is based on contracts. She broke a contract stating that she would forever be faithful. Why is she entitled to anything? She is the dependent party. She does not have a job, however, she is not a stay at home mom. Until about three weeks ago when she asked for the divorce, she was a full time student. Even now that she has graduated college, my children go to daycare while I am at work. I have no clue what she does during that time but she is suppose to be looking for employment.

I would love sole custody of my children. I understand that it would mean proving their mother unfit. There is plenty of ways to prove her unfit, however, I am unsure of how to obtain the proof beyond me coming home and seeing it for myself. I am still figuring that out. At the very least, I want sole physical custody with temporary limited visitation. I do not believe my children are 100% safe with her at all times. I want to make sure that she will be both physically and mentally capable of caring for them when they are with her. I would like sole custody as I am in the military and there is always a chance that I can be moved to another duty station. I do not want to have to battle it out every time the Marine Corps says I have to move.

So, how do I go about kicking her out of my house? Do I have to evict her? I want her out as soon as possible but are unsure of laws that may constitute some sort of neglect or abandoment on my part. Thank again.

5

I know I am not an attorney, but sometimes we who have been through this can offer the best advice!

Due to the adultery, you can get her out based on a Divorce from Bed and Board. This is an action that is fault based. Otherwise, one of you will have to agree to leave! That is just the way it is!

It does not matter that she has committed adultery for a property settlement! The law assumes 50/50 is fair. Fault is NOT supposed to be considered in the property settlement. In fact, NC is a no-fault state. Once you marry someone, it makes NO difference who is at fault when the marriage breaks down as far as equitable distribution is concerned! Property. Marriage. 50/50. Fair? Probably NOT, but that is the way it is!

Children. The Court does NOT like to deal with this issue! With the laws the way they are now, it is pretty much also assumed 50/50 is best for the kids! Only in rare cases is one parent awarded sole custody. Usually, the only way one parent receives sole custody is for the other one to agree to it.

You are in the military. The military has different rules regarding divorce. You need to check with someone who deals with divorces in the military. You might be able to get a different/better deal.

Sorry I am not an attorney. I know a great deal, but I am not always right. Neither are the lawyers, because no one, no one can predict what ANY judge will do or what the outcome of ANY divorce may be! That’s why so many answers on here are evasive. Good luck!

6

If your wife left her email out and open and you merely read what was already loaded you are in the clear.
With respect to divorce, you will have to wait the year before you can file, as adultery is not grounds for divorce in NC which is a no fault divorce state.
Given the facts you list, your wife’s behavior, partying, drinking and abusing prescription drugs it sounds as though a court would find it is in the children’s best interest to be placed primarily in your care. The fact that you are and have been the primary caregiver also holds a lot of weight with judges.
As for the divorce, non-economic fault does not play a role in the division of property, and NC considers equitable distribution to mean a 50/50 split of the martial property in most cases. Her affair does however bar her from alimony as a dependant spouse who commits adultery is not entitled to alimony under the law, so long as the supporting spouse has not had an affair as well.
You may remove her from your bank account, and you do not have to support her, however if the children are spending substantial amounts of time with her, you will want to ensure you pay some amount of support for the benefit of the children.
In order to remove yourself from liability on her vehicle you will have to enter into a property settlement, or get a court order to force her to refinance the vehicle into her own name, or in the alternative, force her to sell it.

I would suggest you meet with an attorney as well, and in the near future to begin making a plan to move forward.