This week I am addressing alienation of affection and problems with in-laws in a divorce. Enjoy.
My husband moved out of the marital residence last week. I got his phone records, and he has been calling this woman on a regular basis. I am suspicious that she is the reason he moved out. These calls have been going on for at least six months. I have figured out who this woman is. Can I sue her? She is the home wrecker, and I feel quite confident of my conclusion. I want her to pay me.
Carolyn Answers …
You possibly have a claim, thanks to a recent case decided by the North Carolina Court of Appeals. The claim you may have against the woman would be alienation of affection. To have a criminal conversation case, you need some circumstantial evidence of sex between your husband and the woman before your husband moved out. At least in your fact pattern, you don’t have this. You might look further into credit card bills to see if you see any suspicious hotel charge.
The elements of alienation of affection are as follows: (1) You had a genuine marital relationship with love and affection at the time of your spouse’s affair. In other words, the marriage was peaceful and intact, and this hurdle is not that difficult to cross. (2) The affection was interrupted by the third-party paramour. (3) You suffered damages with the loss of the marriage. The elements of criminal conversation require sex between the paramour and the husband before the date of separation.
Let’s look at a recent case in the North Carolina Court of Appeals that considers what evidence is needed of pre-separation conduct between a spouse and a paramour. The telephone evidence you have alone may or may not be enough for a claim of alienation of affection.
Brenda sued Liliana for wrecking her home and taking her husband named Jimenez. Liliana was a family friend of Brenda and Jimenez; Liliana had been a guest of their wedding in December 2007. Brenda noticed that her marital relationship was changing and checked Jimenez’s phone records. Brenda found 120 calls in a one-month period between the two. Hmm? Then Brenda’s detective work uncovered two different hotel stays on weekdays when Jimenez was supposed to be at work. She called the hotel and found that Jimenez had been at the hotel with an unidentified woman. Hmm? Hmm? Hmm? Then, suddenly, Jimenez moved out of the residence on the eve of the birth of their first child in April 2012. Tragic. Then Jimenez moved in with Liliana and they had a baby October 2013. Brenda’s and Jimenez’s divorce was final September 2014.
In a trial for alienation of affection and criminal conversation, Brenda was awarded $65,000 from Liliana.
The question for the appeal was whether there was adequate evidence of misconduct between Liliana and Jimenez before the date of separation – a required element to prevail on claims of alienation of affection and criminal conversation. The Court of Appeals held that Brenda had enough evidence on Jan. 16, 2018, in the case of Brenda Lemus Rodriguez, Plaintiff v. Liliana Silverio Lemus, Defendant. Liliana has to pay Brenda $65,000.
Keep looking for some pre-separation evidence of a hotel stay or something to indicate a sexual relationship between your husband and the woman. Good luck.
I live in a beautiful and expensive home. My name is on the title to the home with my husband’s. The home is much more than I can afford with my income and my husband’s income, but his parents are wealthy. His parents (my in-laws) loaned us the money to buy the home, and we signed papers saying they could “foreclose” on the home if we didn’t pay the monthly payments to them.
We cannot make these payments and I fear we are getting ready to separate. The payments are just too much. My marriage is getting rocky and I’m scared. What can I do to save my home? Can my in-laws make me leave the home? I have put so much of my heart and soul into it. I worked on the landscaping. I painted. But we have never been able to make the payments. I’ll bet we are at least six months behind.
Carolyn Answers …
You are in a most difficult circumstance. You say that you really cannot afford the home you are in, and I want to be very kind and gentle about this. You need to be very realistic. There may not be a good way out for you, except standing on your own two feet.
Here’s the deal. Your in-laws are your bank. If you and your husband had gone to a real bank to borrow the money to buy the house, then the bank would have a security interest in the home, known as a deed of trust in North Carolina. If you and your husband failed to make the payments to the bank, then the bank could foreclose on the home. It is that simple. In essence, the bank owns the home. A similar principle applies if you own a car that is financed with GMAC. If you do not pay for the car, GMAC can repossess the car. If you rent an apartment and you do not pay the rent, you can be evicted. When things are financed, the financing person or bank has a right to the return of the property if the transaction was properly documented.
Before the separation happens (and I hope it doesn’t), you should try to have an unemotional business discussion with your husband and the in-laws (who are the bank) concerning what happens to the property if you separate and you cannot make proper payments. Unfortunately, blood kin usually prevails. Don’t be surprised if your in-laws favor your husband in the deal. An option, and perhaps the best one, is an orderly transition to sell the home, so at least any equity you have is preserved. Dealing with this situation calmly and realistically is important to both your mental health and your financial well-being.
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Note that answers are intended to provide general legal information and are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.