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Interference by Others in the Marriage: Alienation of Affection and Criminal Conversation

When a person interferes with a married couple’s relationship, there may be grounds for a lawsuit against that person. This most often occurs when a spouse has an extramarital affair. There are two claims that a spouse may file against this person in North Carolina: alienation of affection and criminal conversation.

Alienation of Affection

North Carolina is one of only seven states that still permits lawsuits for alienation of affection (the other states at the time of this article are Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah). The complaining spouse must prove three elements to pursue this claim:

  1. The couple was married, and genuine love and affection existed between them;
  2. This existing love and affection was alienated and destroyed; and
  3. The wrongful and malicious acts of the defendant (the person interfering in the marriage) caused the loss and alienation of love and affection.

As to the first element, genuine love and affection does not mean a perfect marriage of “untroubled bliss.” On the other hand, an unhappy marriage may be asserted to defend against this claim if the defendant is able to show to that there was no love and affection between the spouses.

Regarding the third element, the plaintiff is not required to show that the defendant intentionally destroyed the spouses’ love and affection. Instead, the plaintiff need only show that the defendant intentionally engaged in conduct that would very likely negatively impact the marriage. Evidence of sexual intercourse by the defendant with the plaintiff’s spouse is commonly used as evidence of the defendant’s wrongful and malicious acts; however, sexual intercourse is not required to bring a claim for alienation of affection. For example, if a spouse’s parent alienates and destroys the married couple’s love and affection, that parent may be sued for alienation of affection.

Criminal Conversation

Despite its name, criminal conversation is a civil claim. There are three elements for this claim:

  1. Actual legal marriage between the plaintiff and the allegedly adulterous spouse;
  2. Sexual intercourse between the allegedly adulterous spouse and the defendant; and
  3. The sexual intercourse occurred before the plaintiff and the allegedly adulterous spouse’s date of separation.

Unlike an alienation of affection claim, a claim for criminal conversation requires proof that a spouse had sexual intercourse with the defendant. Further, the state of the marriage (whether it was a happy marriage with love and affection or an unhappy marriage) does not matter. All that matters is that the spouses were legally married and had not yet separated with the intent to remain permanently separated at the time the sexual intercourse occurred.

When being sued for alienation of affection, the defendant may defend him or herself by showing the court that he or she did not know that the adulterous spouse was married. However, this defense is not available for criminal conversation. Likewise, with alienation of affection, the defendant may assert as a defense that the complaining spouse consented to the affair. Such a defense is not available in response to a criminal conversation claim.

To be clear, both claims for alienation of affection and criminal conversation require that the act of the defendant that gives rise to such claims must have occurred before the married couple’s date of separation (meaning the date that the couple separated with the intent by one or both of them that the separation be permanent). See North Carolina General Statute Section 52-13(a). If the act occurred after the date of separation, the judge may only consider that act as evidence to support (corroborate) acts that occurred before the separation.

Claims for alienation of affection and criminal conversation must be brought within a certain period of time (what is legally known as the statute of limitations). The claim must be brought within three years of the date of the last act of the defendant that gives rise to the claim (for example, the act of sexual intercourse). See North Carolina General Statute Section 52-13(b).

While many people view these claims as archaic, they are still valid claims in North Carolina that may result in large monetary awards. Understandably, these cases are often embarrassing for all persons involved. If you believe you have grounds to assert either or both of these claims, or if you are on the receiving end of these claims as a defendant, you should strongly consider discussing the matter immediately with an attorney experienced in handling claims for alienation of affection and criminal conversation.

Your Ex-Spouse’s Social Security Retirement or Disability Benefits

After a divorce, you are entitled to receive benefits on your former spouse’s Social Security retirement or disability benefits, if you meet the following criteria:

  • You are unmarried;
  • You are age 62 or older;
  • Your former spouse is entitled to Social Security retirement or disability benefits; and
  • The benefit (if any) that you are entitled to receive based on your own work is less than the benefit you would receive based on your former spouse’s work.

If you meet all of the above criteria, and you start receiving the benefits at your full retirement age, then your benefit as a divorced spouse is equal to one-half of your ex-spouse’s full retirement or disability benefit amount. If you were born before 1937, your full retirement age is age 65. If you were born during 1938 to 1959, your full retirement age is somewhere between age 65 and age 67. If you were born in 1960 or later, your full retirement age is age 67.

If you have remarried, then you generally cannot collect benefits on your former spouse’s retirement or disability benefits unless your later marriage ends due to death, divorce, or annulment.

If your former spouse has not applied for retirement benefits even though he or she qualifies for the benefits, then you will still be able to receive your share of the benefits if you have been divorced from your former spouse for at least two years.

If you are eligible for retirement benefits based on your own work, but your former spouse’s benefits are higher, then you will receive a combination of your own benefits and your former spouse’s benefits that equals the higher amount. If you reach full retirement age, you can choose to receive only your former spouse’s retirement benefits now and delay receiving your lower personal retirement benefits until a later date. If you choose to do this, your personal retirement benefits may become higher over time based on the effect of delayed retirement credits.

Finally, if you continue to work while receiving benefits, these earnings may affect your benefit payments. Also, if you receive a pension based on work not covered by Social Security (i.e., government or foreign work), this may affect your benefit payments.

For more information, please talk to an attorney. You may also visit the Social Security website at www.ssa.gov, and click on the Benefits tab.

Termination of Parental Rights

Sometimes circumstances exist where a parent seeks to terminate the parental rights of the other parent. When a parent’s rights are terminated by the court, the result is that the legal relationship between the parent and child is permanently severed. In other words, in the eyes of the law, the parent is no longer the child’s parent.

THE ADOPTION PROCESS IN NORTH CAROLINA

This process begins with the filing of a petition by the parent who is seeking to terminate the other parent’s rights. A common question we receive is from a parent who wants to terminate his/her rights and wants to know what to file. The other parent/legal custodian must file the petition to terminate parental rights, not the parent whose rights are to be severed.

In deciding whether to terminate parental rights, the court must go through two separate stages. First, the court must determine if grounds exist for terminating the rights. If the court determines that such grounds do exist, then the court must decide whether terminating the parental rights is in the best interest of the child.

GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

The various grounds for termination of parental rights are listed in North Carolina General Statute Section 7B-1111(a) and are summarized as follows:

  • The parent has abused or neglected the child.
  • The parent has willfully (i.e. voluntarily) left the juvenile in foster care or placement outside the home for more than twelve months. However, parental rights shall not be terminated if the only reason that the parent is unable to care for the child is due to poverty.
  • The child has been placed in the custody of a county department of social services or a foster home for a continuous period of six months, and the parent has willfully failed during this time to pay the reasonable cost of care for the child despite being physically and financially able to do so.
  • One parent has been awarded custody of the child by the court or has custody by agreement between the parents, and the other parent whose parental rights are sought to be terminated has for a period of at least one year willfully failed to pay child support as required by a court order or custody agreement.
  • If the child was born out of wedlock, the father whose parental rights are sought to be terminated has not done any of the following:
    • Filed an affidavit of paternity in a registry maintained by the Department of Health and Human Services.
    • Legitimated the child or established paternity as provided by North Carolina statutes.
    • Legitimated the child by marriage to the child’s mother.
    • Provided substantial financial support or consistent care for the child and the child’s mother.
  • The parent is incapable of providing for the proper care and supervision of the child, and the parent will be incapable of doing so for the foreseeable future (for example, such incapability may be due to substance abuse or mental disability).
  • The parent has willfully abandoned the child for at least six months.
  • The parent has voluntarily abandoned an infant (defined as being less than seven days old) pursuant to North Carolina General Statute Section 7B-500 for at least sixty consecutive days
  • The parent has committed murder, voluntary manslaughter, or felony assault that results in serious bodily injury of the child, another child of the parent, or another child residing in the parent’s home.
  • The parent has committed murder or voluntary manslaughter of the child’s other parent.
  • The parent’s rights have been terminated with respect to another child, and the parent lacks the ability or willingness to establish a safe home.
  • The child has been relinquished to a county department of social services, a licensed child-placing adoption agency, or a prospective adoptive parent for adoption. Additionally, the consent or relinquishment to adoption by the parent has become irrevocable except upon a showing of fraud, duress, or other circumstances. Also, the relevant jurisdiction requires termination of parental rights before granting an adoption. Finally, the parent does not contest the termination of parental rights.
  • The parent has been convicted of a sexually related criminal offense that resulted in the conception of the child.

WORKING IN THE CHILD’S BEST INTERESTS

Once the court determines that one or more of these grounds exists, the court must then decide whether terminating the parent’s rights is in the child’s best interest. The court shall consider the following factors, as stated in North Carolina General Statute Section 7B-1110(a), in making its determination:

  • The child’s age.
  • The likelihood that the child will be adopted.
  • Whether terminating the parent’s rights will aid the permanent plan for the child.
  • The bond between the child and the parent.
  • The quality of the relationship between the child and any proposed adoptive parent, guardian, custodian, or other permanent placement.
  • Any other relevant considerations.

Thus, the court will first consider whether grounds exist to terminate the parent’s rights. Once the court determines that these grounds exist, the court will decide whether terminating the parent’s rights serves the child’s best interest. If the court decides that grounds to terminate parental rights exist and that such a termination is in the child’s best interest, the court will issue an order terminating all parental and custodial rights of that parent as to the child.

Divorces Spike at Year’s Beginning

The month of January, especially the first Monday of the New Year, is a very busy time for divorce lawyers. Known as Divorce Day in some legal circles, the first Monday often experiences a large increase in divorce filings for a variety of reasons.

Typically, the divorce rates are known to increase for several months, peaking in early March. The phenomenon isn’t just limited to the U.S., as the U.K. also sees an increase in couples seeking divorces during this busy time.

WHY THE INCREASING DIVORCE RATE?

What is exactly behind the trend? Is there any one reason that couples want to get divorced early on in the year? Well, it is easy to see that the issue is multi-faceted. No doubt, each couple’s situation and reasons for divorce are unique; however, there are many issues that overlap.

Here are some of the top reasons couples choose to starting filing around January 2nd:

  • The holidays and family gatherings are over
  • A new year calls for new resolutions and fresh starts
  • Less busy schedule at the start of the year
  • More availability in the courts
  • Financial and tax pros for waiting

While there is no “perfect time” for divorce, the beginning of the New Year seems to give many couples the boost they need to go through with dissolving their marriage. While many may perceive this as a negative way to start the beginning of a new year, it is actually the fresh start and freedom that many individuals having been waiting to pursue the whole year before.

Are you considering divorce? Unsure of whether you should wait or start the filing process now? Collins Family Law Group is here to provide the support and legal guidance you need to take the next step forward into your new year.

Welcome to the Collins Family Law Group Blog!

At Collins Family Law Group, we desire to provide as much information to our clients as possible. Divorce is a complicated aspect of law and a stressful situation when you are experiencing it. We understand that it is important to have as much information on the topic as possible. That is the distinct purpose of this blog. It is here to provide accessible information on all topics of divorce. It can prove useful when determining what the best option for you and your family will be. Read about others’ experiences with their own divorce cases and gain an advantage by having professional advice on child support and other aspects of family law. If you have further questions that this blog is not able to answer, feel free to contact our office directly. We are here to protect your rights and will do everything in our power to give you informative advice on your divorce issue.