Alienation of Affection

North Carolina law provides a remedy for a person who feels another has interfered with his or her marriage, alienating the affection of his or her spouse. Recently, John Edwards' mistress was interviewed by Oprah, candidly admitting that she had entered into a sexual relationship with him knowing that he was married.

The mistress contends that the Edwards' marriage was over prior to her meeting John Edwards. Elizabeth Edwards has a potential cause of action for Alienation of Affections against the mistress. Should Elizabeth Edwards elect to sue her, Mrs. Edwards would have to show that (1) the Edwards had an intact relationship (2) which was undermined and destroyed by the actions of an interloper in order to win.

I was shocked to see that the mistress was so blatantly unapologetic about her role in the Edwards' separation. I was also shocked to see that an attorney had not advised her to keep her own counsel in this regard.

College Costs for Children of Divorce

In both North Carolina and Virginia, Courts cannot order that a parent pay for a child's college education unless that parent had agreed to do so in a separation agreement or court order. Once a parent has obligated himself or herself to pay for college expenses, however, a court may then enforce that agreement.

Child support ends once a child reaches eighteen. A child still enrolled in high school may continue to be supported until age nineteen (Virginia) or twenty (North Carolina). Each state also has provisions for child support for a disabled child who is incapable of self-support.

Following Court Orders

Frequently in my practice, I must deal with helping a client enforce a Court Order. Visitation was denied, payments had lapsed, or a new significant other spent the night when the children were over, for example. Clients call to ask for help in making the other side play by the rules.

Violating an order may place you in contempt of court, if your violation was willful (on purpose). Courts have the ability to enforce orders by subjecting violators to fines, jail, paying the other party's attorneys fees, or by offering a purge clause which requires compliance with the order in order to avoid such sanctions.

The severity of the violation, and the justification offered for the violation, have a major impact on the severity of a sanction. A child support payment missed after job loss following catastrophic illness or injury will usually bring less punishment than the same support payment missed after a luxurious vacation. Repeated violations will usually bring stiffer sanctions each successive time.

When does a Separation Begin?

In North Carolina, parties are separated when they begin to live in separate residences and one (or both) of the parties develops the intention to live separately from the other permanently. In Virginia, the parties can separate in the same residence, but it could be difficult to prove if a spouse denied the separation.

You do not need a separation agreement to be separated. It is a question of fact which must be proven if you want it to be decided in your favor, should your spouse disagree about the separation date. (Some spouses disagree about the date not out of love and a desire to preserve the marriage, but rather because a divorce allows the court to divide assets and award alimony or spousal support.)

Your separation begins on the date you start to live separate and apart. While you can state the date in a separation agreement, the agreement does not necessarily start the separation.

In North Carolina, parties must be separated for a year prior to filing for divorce. In Virginia, parties must be separated for a year or, if there is a signed agreement and no minor children of the parties, for six months prior to filing.

Grounds for Divorce

Grounds for an absolute divorce, one which severs the marital relationship between husband and wife, must exist on the day the divorce is filed.

In North Carolina, there is only one ground for an absolute divorce. That is that the parties have been separated for one year, without interruption. One need not prove any fault basis for the divorce.

In Virginia, there are fault grounds and a no-fault ground. A no-fault divorce can be granted after six months separation if the parties have no minor children and have signed a separation agreement. Otherwise, the parties must be separated an entire year.

Virginia also allows for a spouse to file for divorce based on the alleged fault of his or her spouse. The grounds include sexual infidelity (adultery, sodomy or buggery), conviction of a felony (which carries more than a year's sentence), cruelty (mental or physical), desertion, abandonment, or the creation of a reasonable apprehension of bodily hurt.

But That's MY Stuff

In both Virginia and North Carolina, your spouse has no claim to your separate property, as long as you keep the property segregated. Any items you had prior to the marriage, any gifts given except for gifts from your spouse, and anything you inherit will remain yours. If you have mixed in your separate property with marital property, changed the title to joint names, or actively increased the value of the property, you may have transformed the property into marital or hybrid (Virginia) or divisible (NC) property. Hybrid/divisible property is somehow a combination of separate and marital assets.

Frequently, I'll have a client upset because a spouse has stated that he or she is going to lose some sentimental heirloom in the divorce. He's threatening to take half of her aunt's china in the divorce. She's threatening that he'll lose his grandmother's desk or his childhood comic book collection. If these items are separate property, your spouse has no claim to these assets and is merely trying to bully you.

"He Won't Sign for the Divorce!"

Although both spouses must consent to begin a marriage, the divorce process really only requires one spouse's request. Your spouse need not ever sign any papers or agree to do anything.... should he or she refuse to do so, the Court can enter orders of its own, even against your spouse's wishes.

Sometimes the spouse will not consent to divorce for emotional or moral reasons, for example, he doesn't think the relationship is beyond saving or she doesn't believe in divorce. Sometimes, a spouse will not consent to a divorce because she or he wants to maintain control of an asset or doesn't want to start paying alimony or spousal support.

Regardless of the spouse's reasoning for not wanting to divorce, a Court can still enter a divorce, provide for support, rule on custody issues, and divide a couple's assets and debts. No one ever need consent or sign anything. The person must be notified of the lawsuit, but choosing not to participate will not bar the Court's action.

That being said, having a signed agreement between the parties does make a case much easier and cause the parties to pay less in attorneys fees.