Alienation of Affection in Southern Divorce

Alienation of Affection

Moving to the south after a long career in the north has required some adjustment to regional variation in divorce law. For the most part there is little difference between the divorce law of New Jersey, where I practiced for almost thirty years, and the divorce law of North Carolina, where I presently maintain a mediation practice. Division of marital property is essentially the same. In fact North Carolina adopted New Jersey's equitable distribution statute. Both states have child support guidelines with the distinguishing difference that North Carolina has absolute emancipation of children at age 18 while New Jersey will require parents to support their children through college. Custody law is essentially the same and alimony law, with several major exceptions, is similar. But the exceptions are big ones.

In New Jersey, as in most no fault states, adultery has little or no impact on the issue of alimony. Although the statutes of some northern states permit the judge to consider adultery, very few are willing to do so and alimony is based on need, the duration of the marriage, the ability of the parties to earn a living and the historical standard of living of the marriage. Perhaps Yankees are more cynical or blasé about sex but affairs tend not to have the same taint of scandal they have in the south. It seems that southerners take their sex more seriously, particularly when it occurs between a married person and a person other than his/her spouse. So when the North Carolina legislature set out to modernize divorce law by making it essentially "no-fault" it couldn't quite let go of its obsession with infidelity. So in North Carolina, as in several other Bible belt states, adultery serves as an absolute bar to alimony. It doesn't matter how rotten the husband is, how much he neglected his wife or how much he tore down her self esteem, if he can prove she had an affair he doesn't have to pay her a dime in alimony. If she is to have primary residential custody of the children she gets child support and nothing else. If she spent twenty years as a traditional housewife and is completely lacking in credentials while he earns a big living, the extramarital sex trumps all other needs and all other principles of justice.

Technically, the husband can also be punished for his own adultery by having to pay additional alimony. This is supposed to provide some symmetry and therefore "equality," but in practice, he pays the same alimony he otherwise would have paid. This law is essentially sexist and punishes women rather than men.

The second, and related law, is the suit for alienation of affections. If your spouse has an affair, you have the right to sue his/her paramour for damages on the premise that the defendant interfered in your emotional relationship and literally "alienated" the affections of your spouse. Although we don't see hundreds of such cases each year there are just enough large verdicts and the occasional million dollar recovery to keep alive the image of retribution for cuckolding the other guy. So when a divorce negotiation involves allegations of adultery it is commonplace for the alleged adulterer to insist on a third party release in the settlement that releases anyone with whom he/she might have had an affair. The cuckolded party agrees not to sue the paramour and often gets money in exchange for the agreement.

Because very few cases go to trial; and almost all divorces are resolved by negotiated settlement, allegations of adultery and threats to sue for alienation of affection make for some complicated negotiations. In many cases the one accusing his spouse of adultery does not have enough solid evidence to be certain of prevailing at trial. So instead of refusing to pay any alimony, the threat is used to "discount" the alimony that is agreed on in the end. And the same applies to the threat to sue the paramour. The uncertain case gets traded for some other discount or concession. In some cases in which both parties to the affair are married there is a tradeoff in which the husband of the wife who had the affair agrees not to sue in exchange for the agreement of the wife of the man who had the affair also not to sue. Strange stuff but it happens with considerable frequency here in the genteel south.