As most of us well know, we live in a high-tech, digital world – a world which is becoming increasingly more so with each moment. It is a world full of “smart” devices – smart phones, smart cars, smart televisions, even smart homes. In so many ways, technology adds to our world. We are more connected than ever, the pace of business moves faster, and we can receive our news and updates from family and friends across the globe in an instant. All of these things are wonderful. As with all wonderful things, however, there are downsides. One of the downsides of technology, insofar as family law is concerned, is that it gives us the capacity to spy and eavesdrop on one another with greater ease than ever before. While people have always been able to spy on one another with more traditional methods like tracing, wiretapping, or hiring a private investigator, today’s technology makes it easier than ever before – and this can ultimately cause a number of problems for everyone involved.
Particularly in marriages that are already troubled, spying can be quite a temptation. It’s natural to what to know what we don’t know, and this can be a particularly strong urge when we suspect that our spouse may be having an affair or hiding a bad habit from us. This desire is entirely understandable. It is natural to hope to disprove our suspicions, or to be able to plan how we should take action if we find out that they are true.
While these feelings are understandable, and it is important to know that they should be resisted – for many reasons. Choosing to spy on your spouse is not only an unhealthy behavior that encourages mistrust – in many cases, it is also illegal. Many spouses who are emotionally stressed and desperate to find out the truth about their spouse so they can determine how to move forward unfortunately do not realize this or take it into account until it’s too late.
If you suspect that your spouse is, or may soon attempt to spy on you, or, alternatively, if you are thinking of spying on your spouse, you should contact an attorney immediately. Engaging in illegal methods of spying could not only be devastating from an emotional standpoint – it could also expose you to serious legal liability, which is the last thing you need as you contemplate divorce.
What the Law Says About Spying
Legally, from both a federal and state perspective, spying on your spouse is simply not a good idea. Indeed, both federal laws, and the laws of the state of North Carolina prohibit many commonly used methods of spying on one’s spouse. It is important to have a basic understanding of these laws in order to know what activities could potentially expose you – or your spouse – to liability.
The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act are federal laws that apply to spying, and which are commonly referred to jointly as the Electronic Communications Privacy Act. Initially enacted in 1968, these laws were created to ban wiretapping of telephone line, but have continually evolved with changing times. Today, the law applies to such varied methods of digital communication as emails, cell phones, voicemails, text messaging, online chats, voiceover IP, and more.
Broadly speaking, the ECPA makes it illegal to record or eavesdrop on communications that your spouse makes without his or her consent. This would include wiretapping phone lines, installing spyware on a spouse’s computer without their knowledge, “hacking” into your spouse’s email account, and other similar activities taken without the spouse’s knowledge for the purpose of intercepting their communications.
Certainly, if your spouse authorizes you to read or listen to their communications then legality is not a concern. Unfortunately, however, what constitutes “authorization” can be somewhat of a gray area. These matters are best discussed with a knowledgeable and experienced attorney who understands the law and how it might apply to your particular circumstances, as courts decide these matters on a case-by-case basis. Generally, however, to determine whether your access to your spouse’s communications is likely to be considered “authorized” or not, is to ask yourself whether the actions you’re taking feel like an invasion of your spouse’s privacy. If the answer is yes, it would be best to avoid taking them.
North Carolina has its own act that addresses the interception of wire, oral, or electronic communications, known as the North Carolina Electronic Surveillance Act. This act addresses much of the same information as its federal counterpart, and makes it illegal to intercept your spouse’s communications – whether over the phone or electronically – without their consent.
In addition to these laws, those who are considering spousal spying should also be aware that North Carolina recognizes several tort claims that are also applicable to activities like spying. These causes of action are intended to protect privacy. One of those is known as “Intrusion upon Seclusion,” which essentially means that invasion of privacy is recognized in North Carolina as grounds for a lawsuit. In such a lawsuit, one spouse would assert that the other intentionally intruded into their private affairs, and that a reasonable person would find the intrusion highly offensive.
In order for such a claim to be successful, the intrusion does not necessarily have to be a physical intrusion – certainly, it could include hacking into an email account or bugging a phone. Physical intrusions qualify as well, however – placing a GPS tracking on a car without knowledge or permission, for example, might suffice to bring this type of claim as well.
North Carolina also recognizes other torts that could apply depending on the details of the situation, and consultation with an attorney to better understand the details of those laws would be a wise course of action.
Seek Legal Advice Before Spying
Without question, spying on a spouse can be tempting – particularly if you suspect your spouse of hiding hurtful or harmful behaviors. If you have reached a point in your marriage where you are seriously contemplating divorce, it is understandable to want to obtain information that will confirm or disprove your suspicions. Certainly, in some situations, evidence of inappropriate behavior can be helpful to your case during divorce proceedings, as we’ll discuss later in this guide. It is important to collect that information in the right way, though, and an attorney who understands the law can advise you as to how best to go about doing that in a legal manner. Consulting an attorney prior to taking any action that might be questionable or reflect poorly on you in a future divorce proceeding is always a wise decision, and we would encourage anyone contemplating spying to take that important step first.
In essence, after all of the foregoing factors are considered, our advice to those who are contemplating divorce would be this: Truly take the time you need to think through your decision in the most thorough manner possible. Divorce is a life-changing decision. That’s not to say that it might not be the right one, but it is a decision that certainly should not be made in haste, or from a place of intense emotion that might later subside. Truly think through your emotions, envision your future, and consider the practical realities of what divorce means. As you’re doing so, be careful not to take other actions – spying, having affairs, or engaging in other behaviors – that might be detrimental to you in future divorce proceedings. Doing so puts you on the best footing to go forward down whatever path you ultimately decide is best.
If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation.
Criminal Conversation and Alienation of Affection Lawsuits
For those contemplating an affair, or who suspect that their spouse might be, it is important to realize that North Carolina law not only lists adultery as a criminal offense, but also has civil causes of action which can be brought against those who engage in affairs. These lawsuits are called “criminal conversation” or “alienation of affection” actions, and allow one spouse to sue for damages based on allegations of emotional harm caused to the marital relationship by a third party. These suits are usually brought by one spouse against the lover of the other spouse who had an affair, and in North Carolina, juries have awarded millions of dollars as a result of these lawsuits.
Understandably, it can often be difficult to prove that sexual intercourse actually occurred. As a result, in many of these situations, circumstantial evidence is accepted as proof. This essentially means proving that the spouse being charged with adultery had the opportunity and desire to engage in it. One example of this might consist of proving that the spouse being charged and the third party booked a hotel room and spent several hours there together alone without the other spouse’s knowledge. Though it is not actual proof that intercourse occurred, circumstantially, it might be considered sufficient.
It is important to take the possibility of such lawsuits seriously. Though they can be complex and require meeting a certain burden of proof, if successful, it is not unheard of for plaintiffs to receive jury awards in the amount of hundreds of thousands of dollars. If you are contemplating an affair, or believe that your spouse might be, this is certainly important information to know and to keep in mind.
If you are considering cheating on your spouse, the possibility of your spouse bringing one of these lawsuits should the affair be discovered should give you pause. If a relationship is meant to be, it ultimately will be – but waiting for the proper timing is best. Rushing into something that could not only have significant financial consequences, but that could also be used against you in a custody or alimony determination is simply not the best course of action.
On the other side of the coin, if you believe that your spouse had, or continues to have an affair, consulting with an attorney as to whether a lawsuit for criminal conversation might be an option in your circumstances a is wise decision. It is certainly understandable to be hurt and angry if you feel that you have been betrayed by someone you love and who you believed loved you.
Depending on the circumstances, however, it may not be worth the time, effort, and emotional expenditure that filing a lawsuit of this nature might require. In many cases, defendants in these lawsuits are ultimately unable to pay the significant damages assessed against them – they simply don’t have the financial means. In those situations, a spouse who feels hurt will have to decide if obtaining a judgement that will have little or no financial benefit is ultimately worth it. Consulting with an attorney can be very helpful in making that decision, and is always advised.
If you need to speak with a family law attorney to learn more about separation, divorce, alienation of affection, and criminal conversation, please contact Adkins Law to arrange a consultation.
 Only six other states – Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah also have laws allowing a spouse to sue for damages on the basis of emotional harm caused by a third party to the marriage.
Finding yourself in a difficult place in your marriage can be extremely difficult from an emotional perspective, particularly if you have been experiencing those difficulties for some time. Depending upon the nature of your relationship and your troubles, it is entirely understandable that you might feel lonely, frustrated, and without true companionship. No one wants to feel that way, and trying to get through the day while struggling with those feelings can understandably be stressful, draining, and discouraging. It is in these situations, where one or both spouses are struggling with emotional emptiness, that some find themselves more susceptible to becoming involved in affairs, or conversely, discover that their spouse is having an affair.
While affairs are ill-advised for any number of reasons, in North Carolina, they have very real and significant consequences from a legal perspective. In North Carolina, adultery is actually a misdemeanor offense under the criminal code, though it is highly unlikely that a prosecutor would bring criminal charges for an affair. What is far more likely, however, is that adultery, if proven, could significantly impact many aspects of a divorce case – not only from a financial perspective, but also with respect to child custody and other matters of great importance to the parties, not to mention the fact that the spouse harmed by the affair could potentially bring a lawsuit for significant damages under North Carolina law.
How Evidence of an Affair Can Impact Your Divorce Case
Ultimately, evidence of adultery can impact your divorce case in a variety of ways. Some of the most significant include:
If you need to speak with an experienced divorce attorney, please contact Adkins Law to arrange a consultation.
In North Carolina, infidelity is one of the nine acts of marital misconduct defined under N.C.G.S. § 50-16.1A listed as “illicit sexual behavior.” North Carolina defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4) [criminal sexual offenses], voluntarily engaged in by a spouse with someone other than the other spouse.”
What effect does cheating have on my marriage and separation? Cheating may serve to either guarantee or bar alimony for a spouse. In North Carolina, to have a claim for alimony, there must be a dependent / supporting relationship. This means that one spouse must be a dependent spouse, meaning they are “…actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” The other spouse must be a supporting spouse, meaning they are “... a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.”
Without a dependent / supporting relationship, a court cannot make an award of alimony. The burden of proving dependency is on the spouse asserting the claim for alimony. It is important to note that even if a spouse is dependent, that dependent spouse is not entitled to an award of alimony if the other spouse does not have the ability to pay. A dependent wife, for example, would likely not be entitled to an award of alimony from a husband in bankruptcy whom does not have the ability to pay any amount of alimony at the time of the alimony hearing. See Bodie v. Bodie, 221 N.C. App. 29, 727 S.E. 2d 11 (2012).
A finding of adultery on behalf of a party asserting a claim for alimony renders a dependency determination moot. Thus, a dependent spouse who has cheated is barred from receiving alimony; the court will not make a determination of whether the spouse is actually dependent.
An actually substantially dependent spouse means that the spouse seeking an award of alimony must actually be dependent upon the other spouse to maintain the standard of living to which that spouse became accustomed to during the last several years before separation. The spouse must actually be unable to maintain the accustomed standard of living from his or her own means.
Examples of cases where a spouse has not been found to be dependent:
Examples of cases where a spouse has been found to be dependent:
The Supreme Court in North Carolina has held, however, that just because one spouse is dependent, it does not automatically mean that the other spouse is support. See Williams. Also see Barrett v. Barrett, 140 N.C. App. 369, 536 S.E. 2d 642 (2000). A surplus of income over expenses is sufficient in and of itself to warrant a determination that a spouse is supporting. See Bodie.
If a supporting spouse is determined to have cheated, the marital misconduct must have occurred during the marriage and prior to the date of separation. A court may consider incidents of post-separation marital misconduct only to the extent that it may corroborate evidence supporting other evidence that the marital misconduct occurred during the period of marriage and before the date of separation. The date of separation is the date that the parties actually began to live separate and apart with the intention of at least one party that the physical separation be permanent. See Romulus v. Romulus, 215 N.C. App. 495, 715 S.E. 2d 308 (2011). Parties must not only physically separate with the intent of at least one party to remain separate and apart, they must physically separate in a manner that indicates the cessation of cohabitation. A husband, for example, that came and went during the period of separation but continued to receive mail and maintain belongings at the marital residence and that, while he occasionally slept at his office, he returned home to do chores and take the children to activities was determined to not have separated from his wife. The parties were determined to not have legally separated. See Romulus.
What counts as an act of illicit sexual behavior? As stated above, North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined by N.C.G.S. § 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse. In determining whether to award alimony, any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
A spouse can prove that the other spouse engaged in illicit sexual behavior in a number of ways. Admission on behalf of the offending party is a very common manner of establishing proof. The term “sexual relations”, however, is not part of the statutory definition for illicit sexual behavior. In one North Carolina case, an admission by one spouse to the other spouse that he engaged in sexual relations did not establish illicit sexual behavior. See Romulus.
To establish adultery, a party must show that the offending party had both the opportunity and inclination to engage in sexual intercourse. Wallace v. Wallace, 70 N.C. App. 458, 319 S.E. 2d 680 (1984). This means that without direct proof, a party may establish that sexual intercourse occurred by showing that they wanted to engage in sexual intercourse with another party, and had the actual opportunity to do so. An example would be a spouse who has sent text messages and made phone calls with another party, and has been observed inside the other party’s residence for a period of time. There may not be direct evidence, pictures or video of the sexual intercourse, but circumstantial evidence would show that they had the opportunity and inclination to engaged in sexual intercourse.
What does this mean? In a nutshell, to have a claim for alimony, there must be a dependent / supporting relationship. One party must make substantially more income than the other party and the dependent party must rely on that income to maintain their lifestyle. If the dependent party has had an affair, they are barred from alimony; if a supporting party has had an affair, the dependent party is essentially guaranteed alimony; and if both parties have cheated, it is in the discretion of the court as to whether any award of alimony will be granted.
If you need to speak with a family law attorney regarding spousal support and alimony, please contact Adkins Law to arrange a consultation.
Imagine this—your spouse is in the shower and you notice they’re getting a lot of text messages. You flip over the phone, and see their inbox is full of explicit texts and pictures going back and forth between your spouse and a coworker. You’ve had your suspicion of infidelity, but now you have proof! What do you do next?
Before you do anything else, you should contact Adkins Law and set up a consult about your situation. In North Carolina, marital misconduct is a big deal. It can be used as the basis for a fault-based divorce, in determining alimony, and in so called heart balm torts like criminal conversation or alienation of affection suits. Unfortunately, those incriminating texts may not be enough to prove infidelity on their own.
“But what do you mean this isn’t enough?!”, you’re surely asking. This is a frustrating side effect of new technology coming into the courts. While these text messages may be very explicit and constitute cheating in your mind, absent proof that there was inclination and opportunity to have actual, physical sexual conduct, it simply is not enough.
This is not the end, however. These text messages may be very helpful in bolstering your claim of infidelity. For example, if you know that your spouse and their coworker went on a “work trip” together and shared a room, you can likely make the case that they had both inclination and opportunity to engage in a sexual relationship, and those text messages only make it more likely that they did. Text messages may also detail an encounter that occurred between the parties that can be used to show that a sexual relationship is ongoing or to show that third party driving a wedge into the marriage.
Remember, text messages, emails, phone records and the like can all be used as supporting evidence, but it is important that they are collected correctly and authenticated to be used in court.
If you are interested in pursuing a divorce based on infidelity or have any questions about how to correctly preserve those text messages, contact Adkins Law today to set up a consult.
By: Sarah Bennett
While I have been known to waste my time with even some of Bravo’s most questionable programming (I’m looking at you, Relationshep), on Monday nights, I really live for Vanderpump Rules (“VPR” for all the insiders). Last week, Bravo aired the 101st episode of VPR: “Sex, Lies and Audiotape.” The gist of the episode was that our anti-hero, Jax, recently confessed to his girlfriend, Brittany, that he slept with Faith, another co-worker. While Jax contends that his episode of unfaithfulness (pun intended) was a one-time slip-up and that he truly loves Brittany, Faith claims otherwise. In fact, Faith shares with the rest of their friends that she possesses an audio recording of Jax stating that he’s no longer sexually attracted to Brittany and that he never intends to marry her (Jax and Brittany’s path towards the altar – and Brittany’s desire to expedite that journey – is a major topic on both VPR and its spin-off, Vanderpump Rules: Jax and Brittany Take Kentucky, which I have also shamelessly watched).
If you are still reading this post, you may be wondering what my personal interest in the questionably authentic relationships of servers at a Southern Californian restaurant has to do with family law in North Carolina. The answer: wiretapping laws! Just about weekly, Chris or I consult with a client who wants to know whether a secret recording he or she made of their spouse (or some other individual) can be used in court. As with many questions about family law, the answer is, “it depends.”
For purposes of state wiretapping laws, North Carolina is a one-party consent state. What that means, generally, is that it does not violate state law for you to record an in-person or telephone conversation between yourself and another person (so long as everybody is in North Carolina when the recording is made). On the other hand, it would violate our state’s laws for you to secretly record a conversation between your spouse and a third person when neither your spouse nor that third person know that they are being recorded. So let’s think about it in terms of VPR: Faith, unbeknownst to Jax, recorded a private conversation between Jax and herself. If this had all occurred in North Carolina, Faith would face no state criminal or civil liability and the court would likely admit the recording as evidence if Faith and Jax were later involved in a lawsuit. However, let’s imagine if the situation were a little different; for instance, let’s say that Brittany, suspicious that Jax may be cheating, wanted to know what Faith and Jax were saying and doing behind Brittany’s back. So, Brittany decided to “bug” Jax for the purpose of secretly recording Faith and Jax’s private conversations without either Jax or Faith knowing about the recording or giving Brittany permission to do so. If all of these actions occurred in North Carolina, this would be problematic for Brittany – not only would Brittany’s recording be inadmissible in any kind of legal proceeding, but she could also be facing civil liability or even felony wiretapping charges.
This “bugging” hypothetical is akin to when a person secretly records their spouse’s conversation with a possible paramour or a child. Absent one of the recorded parties giving their consent to the recording, generally, this is not permissible in North Carolina (there is, however, a good faith exception known as vicarious consent in certain circumstances when one is recording a child). While I am not admitted to practice law in California, a cursory Google searched revealed that California, where VPR is filmed, is a two-party consent state. That means that in California and any of the other eleven two-party consent states, a person who wants to record a conversation needs the permission of all parties to the conversation prior to making the recording. I would imagine this could potentially mean legal trouble for Faith if she did not let Jax know that she was recording him; this might also provide some insight into why Bravo opted not to air the contents of the actual recording, but instead filmed the Bravolebrities’ reactions to hearing the recording.
Returning to the law in our state, there are some additional exceptions to North Carolina wiretapping laws. For instance, cameras can be used in public places (such as streets, hotel lobbies, parks, etc.) to record the area. This is not considered illegal wiretapping because an individual has no reasonable expectation of privacy in these public areas. Obviously, this does not apply to “upskirt” cameras or other criminal recording methods – but there can be another blog post (and probably another reality TV show) in which we can examine those issues.
Outside of the family law context, there are additional, legitimate scenarios where one may want to record a conversation, such as a performance review at work or an encounter with a police officer. Clearly, the laws in North Carolina regarding wiretapping are complicated. I strongly suggest that anybody thinking of making an audio or video recording read the governing North Carolina law (N.C.G.S. § 15A-287) and consult an experienced attorney for advice on the issue. In the meantime, happy reality television-watching!
Commonality of Modifying Alimony
After a court grants alimony (either temporary or permanent), it may later be modified by the court or terminated completely depending on the circumstance. There must be a substantial change in circumstances in order for court to modify an existing agreement. Courts have wide discretion in how they define situations that constitute a substantial change in circumstances to warrant a change in alimony. It is not common for a court to modify an existing alimony award. North Carolina submits to the partnership theory of marriage, where both partners have an equal obligation to provide financial support to each other during marriage. This theory extends to post-separation spousal support.
Spousal Support: Payor and Recipient
During the process of modifying alimony agreements, an individual is either the payor or the recipient of spousal support. These roles are determined objectively depending on which partner was financially superior in the marriage. The payor is typically the partner who will be giving money to the recipient or dependent partner. The amount of spousal support depends specific factors, such factors include: the duration of the marriage, the role of each spouse, and the age of the partners.
Modification of Spousal Support
Either party has the ability to initiate modification of an award. The party who moves for a modification of alimony has the responsibility of showing a substantial change in circumstances that warrant change in spousal support. Typically, the party will either move for either upward modification or downward modification.
In North Carolina, if your spouse cheats on you, you may bring a lawsuit against the paramour for alienation of affection or criminal conversation. This means you may sue the person that slept with your spouse or alienated your relationship. Take a look at this video for more information on heart balm torts in North Carolina.