Ask Carolyn
Dear Carolyn,
I think I am about to be sued for alienation of affection. While I am not really sure exactly what this is, I am sure that I am not really doing this. Yes, I do have a paramour who is married. However, it is very clear to her and to me that the relationship with her husband was over when we started our affair. How can I possibly be sued when she had no marriage to speak of? I also heard a rumor that maybe alienation of affection is against the United States Constitution. Is there any movement for alienation of affection to be declared unconstitutional? Any help you can give me would ease my pain and my nervousness.
Carolyn Answers:
Alienation of affection is a tort.
A tort is a civil action stemming from an injury to another person. An example of a tort is an automobile accident. The person committing the tort of an automobile accident had no right to run into the injured party’s automobile. The person committing the automobile tort has to pay to fix the other person’s automobile.
Compare the automobile accident tort to the tort of alienation of affection, which is essentially rear-ending someone else’s marriage and creating an injury to the marriage. The person rear-ending the marriage, creating the damage of a dissolution of the marriage, has to pay the injured ex-spouse for losses.
Damage calculations in alienation of affection and criminal conversation can be much more complex than automobile fender benders. But, if someone is seriously injured in the automobile accident then the jury is dealing with a more complex damages calculation much like damages for rear-ending a marriage.
Even though the marriage seemed like it was not a marriage of genuine love and affection, it might be. “He is an ol’ coot (or is it goat). But he is my ol’ coot. Leave my coot alone.”
Unfortunately, in the court system, most intact marriages are considered “genuine marriages.” Maybe there hasn’t been sex for 10 years, but there was Christmas dinner and all the kids came home. Lots of great family photos for evidence! At least until someone has the nerve to move out and separate from a spouse, there is a marriage of some kind. Therefore, in your situation, it is likely that there is a genuine marriage, even if the marriage is strongly impaired. The question will be then, have you interfered with it, creating damages.
With regard to your question about constitutionality, your question is timely. The North Carolina Court of Appeals ruled in the case of Marc Malecek v. Derek Williams on Sept. 5, 2017 that both alienation of affection and criminal conversation (sex with someone’s spouse) are constitutional. Marc Malecek is married to Amber Malecek. Ms. Malecek is a nurse at a hospital where the defendant, Derek Williams, was a medical doctor when the affair and sexual relationship started. Marc Malecek uncovered the affair. Dr. Williams moved to dismiss the claims as unconstitutional. The trial judge ruled in Dr. Williams’ favor and found the torts of alienation of affection and criminal conversation to be unconstitutional.
Judge Dietz with the Court of Appeals disagreed. The Court of Appeals ruled that both alienation of affection and criminal conversation laws were constitutional. Further, the torts did not interfere with consensual sex, which Dr. Williams argued was a constitutional right. But, rather, the Court of Appeals held that the state of North Carolina had an interest in protecting the sanctity of marriage, and that the sanctity of marriage is the right of the state to protect, which overrode private consensual conduct. The Court of Appeals also indicated that alienation of affection and criminal conversation do not violate free speech rights under the First Amendment.
For now, both alienation of affection and criminal conversation laws are constitutional under the United States Constitution. It seems that these torts are here to stay until someone has the resources and the money to take it to the United States Supreme Court. Even then, it may be an uphill battle because of a state’s right to protect its institutions; in other words, the institution of marriage.
Dear Carolyn,
I am paying child support under a court order for two children. Unfortunately, the order does not say that the child support terminates or lowers when my oldest child reaches age 18 and is out of high school. In 2017, my oldest child graduated from high school and is now off to college, expecting me to pay for college. I need a reduction in my child support. Can I get a reduction? I am making less income than I made when I entered into the original consent order for the two children. Plus, I currently only have one minor child. Please help me?
Carolyn Answers:
Child support orders are generally modifiable. Child support orders are not permanent in North Carolina and are subject to modification based upon a change in circumstances. (North Carolina General Statutes section 50-13.7.) The change of circumstances needs to be a substantial change. The burden to prove the modification rests with you as the moving party. You will have to file a motion to modify your current child support with the court. The modification will likely be retroactive to the date that you file your motion. However, you cannot simply stop paying the amounts currently due under the court order. You have to honor the court order until it is modified.
You have a very typical change, which is a child aging out, and I would suggest that you apply to the court to modify your child support order. If you and your ex-spouse are making $300,000 or less in gross income, the child support will be determined by the North Carolina Child Support Guidelines. It is also possible to request a deviation from the Child Support Guidelines, which could be evaluated with an attorney of your choice. What kind of factors cause deviations would be beyond the scope of this Ask Carolyn.
Have a family law question? Ask Carolyn!
Send your questions to Ask Carolyn through our website, on social media, by email at askcarolyn@rhinotimes.com, or mail them to P.O. Box 9023, Greensboro, NC 27427. Please do not put identifying information in your questions.
Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your unique case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”
This blog is revised from a previous column posted in the Rhino Times.