Alienation of affection is a lawsuit you can file if you discover your spouse cheated on you.The lawsuits are called "heart balm torts" because they are designed to alleviate the pain and suffering of a broken marriage.Most states have eliminated this cause of action because of the outdated idea that a wife is the property of her husband.
Step 1: It is a good idea to research your state's law.
All but eight states have abolished alienation of affection lawsuits.An alienation of affection claim requires proof that your marriage included love between you and your spouse, that love was destroyed, and that the destruction came about because of the defendant's malicious conduct.If you can prove that the person had sex with your spouse, it's considered malicious.It is not necessary to prove sexual intercourse.In states such as North Carolina, you don't have to prove that the other person had sex with your spouse.You have to show that the defendants played a role in alienating your spouse.You don't have to prove that the person intended to destroy your marriage.You only have to prove that he or she did something that would have a negative impact on the relationship.You don't have to prove that the defendants started the affair.The fact that he or she was an active participant and encouraged your spouse's actions despite knowledge of the marriage is enough.If you and your spouse were already physically separated with the intention of remaining permanently separated or filing for divorce, you can't file an alienation of affection lawsuit.
Step 2: You should check the statute of limitations.
The deadline for filing your claim is in your state's law.The statute of limitations for personal injury cases should be looked at if the law does not include a specific deadline.In North Carolina, you have to file a lawsuit within three years of the most recent act.You don't have to prove that your spouse engaged in sexual conduct.If the statute of limitations was three years in North Carolina, you would have until June 15, 2016 to file your lawsuit if you found a hotel charge on your spouse's credit card in June of 2013).
Step 3: The correct court should be chosen.
The court that you file your lawsuit in must have power over the subject matter of your claim as well as the person you're suing.The court in the county where the conduct took place will have jurisdiction over your case.If you and your spouse live in New Hampshire and you can prove that the act happened there, you could file a lawsuit in a county court there.It can be difficult to determine which court has jurisdiction when there is a pattern of conduct rather than a specific event.If you don't know which court to use, you should consult an attorney to find out.
Step 4: Get information.
Keeping in mind what you have to prove in your lawsuit, gather any documents or other evidence you might have of each element of the offense.Videos, photos, and sweet phone messages can be used to prove that you and your spouse were happily married with genuine love and affection for each other.You don't have to prove that you had a perfect marriage just that some degree of love and affection existed.If your husband cheated on you with another woman, and she is now pregnant with his child, that can provide proof that the two of them had sex.
Step 5: Consider working with an attorney.
An attorney with experience in family law or personal injury law may be able to help you.If you live in a state where alienation of affection claims are still allowed, judges are reluctant to hear these cases.Your case may be heard if you have an attorney.
Step 6: You should read your state and local rules.
You want to make sure your lawsuit isn't thrown out because you failed to follow the rules, because the procedure varies from state to state.You can usually find a copy of the state rules of civil procedure at the clerk's office or on the court system website.
Step 7: You can create a caption and title.
The first page of every document filed in your lawsuit will use the caption to identify the case before the court.Each court has a different format for its title and caption.You should be able to get a copy of a complaint filed for another case in the same court if you can't find the complaint form.The name of the court, the state and the county where it is located are identified in the caption.The file number is a unique number assigned by the clerk to identify all documents filed in your case and is included in the caption.Since you don't have a file number, you should leave enough space for the clerk to fill it.
Step 8: The introduction needs to be written.
The reason for your lawsuit should be listed at the beginning of your complaint.If you've found a complaint to use as a guide, you can borrow the introductory language from that document and make it your own.You should start by listing your residence and street address.Provide a state of residence and street address for the defendants.
Step 9: You can set forth your claims in numbered paragraphs.
The elements of the lawsuit in your state's law can be used as an outline for each factual allegation.Each fact or statement should have a separate paragraph.It's important to only have one independent allegation per numbered paragraph when the defendants answer your complaint.
Step 10: Tell me about your damages.
Explain the basis for monetary damages and calculate an exact amount.Loss of consortium, mental anguish, and any injury to your health or loss of support from your spouse will be the main causes of your damages.If you're seeing a therapist to deal with the stress and mental anguish that accompanied your divorce, the amount you pay would be part of your damages.If you're in the process of filing for divorce, you may be able to include your attorney's fees and court costs for the divorce in your lawsuit.If you file an alienation of affection lawsuit in one of the states, you can ask for punitive damages, which can be a civil fine.If you want to file a complaint in Illinois, you'll need to check state law to find out what the caps are.
Step 11: Your closing paragraph needs to be written.
In the closing paragraph of your complaint, you should state again the reason for your lawsuit, and ask the court to award the damages you've asked for as well as any other relief it deems just and proper.The "wherefore" clause is used when the sentence begins with the word.
Step 12: Your signature block can be created.
After you sign your complaint, you need to type your full legal name and contact information.If you aren't represented by an attorney, you have to sign your complaint and provide contact information that the court can use to contact you if necessary.If you're comfortable with the court's public record of the case, you might include your phone number and email address if you want to be contacted that way.
Step 13: You have to fill out your summons.
The summons gives information on how to serve the person and how long they have to respond to the complaint.If you fill out the form the court clerk will create a summons for you.The same document is used for all civil cases in that court.
Step 14: You can complete any additional forms.
If the court requires a cover sheet to process your complaint, you can find out from the clerk.A civil cover sheet is required for all civil actions filed in North Carolina courts.A summary of the case is provided on the cover sheet.The form can be obtained from the clerk of court.
Step 15: You should sign and date your complaint.
You have to sign your complaint in front of the clerk in some places.If you are required to have your complaint verified, you must sign under penalty of perjury that the complaint is true to the best of your knowledge.When you've signed your complaint, make copies so you have one to deliver to the defendants and the other to keep for your own records.When you file, the court will keep your originals.
Step 16: You can file a complaint with the clerk of court.
Your case will be assigned to a judge after the clerk stamps "filed" on your documents.Filing fees can be as high as $200 to file a complaint and initiate a lawsuit.You can ask the clerk to waive the filing fees if you can't afford them.After reviewing information you give on your application about your income and assets, the court will waive filing fees for you.
Step 17: The defendants should be served.
You can't proceed with your lawsuit until you can prove that the other party has legal notice.You can either use a private process serving company or use the sheriff's department.You will have to pay a small fee for these options.
Step 18: If there are any counterclaims, respond to them.
Within 20 days of the date you were served with her answer, you must file an answer to the counterclaims against you.The defendants might raise counterclaims such as invasion of privacy and malicious prosecution.
Step 19: Take part in discovery.
You and the other party have the opportunity to ask each other questions during the discovery process.The process of litigating an alienation of affection claim can be emotional.Your claims of love and affection are false if the defendants can show that your spouse was not happy in your marriage.Many of the details you learn through the discovery process could have an effect on your relationship with your spouse.If you're trying to reconcile with your spouse, this could be problematic.
Step 20: If you want to settle your claim, consider mediation.
A third-party mediation can help you resolve the lawsuit and avoid the stress of a trial.Settlement is a way to keep your spouse's business private.An alienation of affection lawsuit could cause great damage to your spouse's reputation since court records are public.In regards to division of assets, an alienation of affection claim could provide you additional leverage.If you want the lawsuit to go away, your spouse may be willing to accept fewer assets.
Step 21: Prepare for trial.
The matter will be heard by a judge or jury if the lawsuit was not settled out of court.