How do you "prove" adultery?

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How do you "prove" adultery?

Postby mijakamaj » Sun May 31, 2009 6:06 am

What evidence do you need to prove adultery for alimony purposes, and for a potential Alienation of Affection and Criminal Conversation suit?
Do illicit sexual acts constitute adultery? For the sake of legalities just what are illicit sexual acts?

I began suspecting my husband of an improper relationship with another married woman. As such, I began keeping detailed records of the volume of phone calls and durations of these calls between him and her. I also placed a voice activated recorder in his vehicle (this vehicle belongs to my company), and I have recorded him telling a friend about this relationship. These conversations describe her behavior as being seductive, etc. They also detail my husbands pursuit of her because of her actions towards him. There are discussions of sexual contact, but not sexual intercourse.

I have since made my husband leave the home as my suspicions were confirmed to me by this friend. Are the recordings or testimony of another enough to prove, at the least, Alienation of Affection?

As far as sexual intercourse, I'm very sure they've indulged. At this point, what would I need to prove criminal conversation? Photos? Videos? Admission from one party? Can I record any admissions for later use?
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Postby Erin Clarey » Sun May 31, 2009 7:15 pm

To prove adultery you must convince the court that it is more likely that not that your spouse engaged in illicit sexual behavior with another person. This is proven by showing the court your spouse had the inclination to sleep with a particular person, and the opportunity (staying overnight, visits to a hotel, ect.)
You may prove inclination and opportunity photos videos and admissions.
For an alienation of affections case you must demonstrate that you had a loving marriage, which was destroyed by the malicious acts of a third party. Criminal conversation requires proof that your spouse had sexual intercourse with the third party you are brining the claim against.
Illicit sexual acts are described in the statutes as acts of sexual behavior or deviate sexual intercourse, deviate sexual acts, or cunnilingus, fellatio, analingus, anal intercourse, or penetration, no matter how slight by any object into the genital or anal opening (other than for medical purposes).
The recordings may not be introduced into evidence as this type of recording is an illegal wiretap. However you may record phone conversations so long as one party consents, the other party does not have to even know the call is being recorded.
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The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
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re admissions

Postby mijakamaj » Mon Jun 01, 2009 7:55 am

What type of admissions are accepted in a court room? If a friend shares with me something my husband has confided in him, is that admissible, or is that hearsay?

Would leaving the job and meeting at a designated place prove inclination?

I can prove without any doubts illicit sexual acts, as well as third party interference resulting in the destruction of my marriage.

Isn't criminal conversation and adultery the same thing?
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Postby Erin Clarey » Mon Jun 01, 2009 11:06 am

Most of what is said out of court is inadmissible pursuant to the rules of evidence against hearsay, however any thing your soon to be ex has said is admissible can come into court as and admission of a party opponent.
Any admissible evidence you have connected to the affair can be used as circumstantial evidence to help prove inclination or opportunity.
Criminal conversation is a third party claim of which adultery is an element. There are many posts on the forum related to this issue which you may find helpful to peruse.
Erin E. Clarey
Attorney with Rosen Law Firm

Ballantyne • Cary • Chapel Hill • Charlotte • Durham • Raleigh • Matthews • Pineville

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

ROSEN.COM

We aim to be your best option for finding a Raleigh divorce lawyer, Charlotte divorce lawyer, or Durham divorce lawyer

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Erin Clarey
 
Posts: 7672
Joined: Mon Dec 08, 2008 8:50 am
Location: Attorney with the Rosen Law Firm

Postby momsdaughter » Mon Jun 01, 2009 1:41 pm

FWIW. I had an admission. I had evidence of adultery. The judge refused to allow this issue to be brought up in Court. Adultery/criminal conversation is only important if you are the dependent spouse. In that case, alimony must be awarded. So, if you are the dependent spouse, you will probably receive alimony with or without the evidence of adultery. Don't bet on being compensated just because your spouse had an affair. In my case, I received alimony abeit a mere pittance. It's really a joke.
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Postby kittyloaded » Sun Jun 07, 2009 6:22 pm

Momsdaughter- I haven't been able to get a straight answer from someone who has gotten alimony in NC. May I ask you a few questions....were you the dependent spouse? Did you get PSS...was the alimony much less? Thanks in advance.
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Postby momsdaughter » Sun Jun 07, 2009 8:01 pm

Kittyboaded:

Be aware that what happened in my case does NOT happen in all cases.

I will try to answer your questions based on my experience ONLY.

I was married for 21 years. I was a stay at home mom. My ex was a physician with a significant salary. The ex committed adultery and admitted the adultery.

I was a dependent spouse, obviously.

The ex tightly controlled the finances and kept me on a strict budget.

I received PSS. It took two years for me to receive PSS. During the interim, I received "voluntary" payments from the ex of a small amount. He controlled all marital assets and I had access to nothing. The PSS was more than his voluntary payments.

In the Final Analysis, the judge reduced the PSS amount significantly. In other words, he reduced my expenses. The adultery was never, never considered.

In the final analysis, the judge reduced the child support by over 1200.00. The custody had only changed by 2 days.

In the end result, I received considerably less than I had received during the PSS/original child support order. I did not receive 50% of the property.

Keep in mind that many judges are reluctant to reduce a PSS Order. I receive alimony, but my alimony is only about 6% of the ex's income. All in all, the ex retained over 90% of his income. At age 50, I was forced back into the workforce and will be working the rest of my life. The ex is on track to retire next year at age 56.

I received no attorney fees. No medical. No life insurance policy. No say in the children's UTMA funds. I have to pay 50% of all extracurricular and 50% of all medical/dental. I have a low 5 figure income while the ex is in the top 1% of all incomes in the U.S. I lost my house.............everything................
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