Should you file a claim against your spouse’s lover?

If your spouse has an affair or starts a romantic relationship with someone else before your North Carolina separation is final, you may have grounds for a claim against the third party. While mediation settles many of these cases, some go to court.

According to the North Carolina Legislature, a claim of alienation of affection or criminal conversation must take place within three years of the last time the defendant acted in a manner to cause the action.

Requirements for a claim

You must establish several elements for a successful lawsuit:

• You and your spouse had a loving relationship before the affair 
• How the paramour’s conduct destroyed or diminished a loving marriage 
• The wrongful conduct of the third party led to the demise of your relationship 

Although a claim of criminal conversation typically accompanies an alienation of affection claim, it may not. A non-sexual relationship or one that consists of only virtual contact, such as video calls, phone conversations and texts may also qualify. Such a claim can entitle you to monetary damages, including distress, loss of marital relations and income.

Considerations before you file

Although you may have a legal basis for a claim, you may decide not to pursue such an action. Lawsuits are of public record. Can you handle having your personal life made public? The defendant must protect themselves, which means delving into the details of your marriage and rooting out any decision, conversation or event that can show the weak spots in your relationship.

Lawsuits are expensive. Do you have the financial resources and time to spend on private investigators, forensic experts and depositions? It may take months to gather all of the information needed to win your suit.

Depending on the situation, even if you win, the defendant may not have the income or assets to pay the award. In the end, you can spend significant effort winning your case, with nothing to show for it. Understanding the options regarding a cheating spouse and divorce negotiations is critical for making the best decision for you.