Illicit Sexual Behavior

  1. Podcast
  2. Illicit Sexual Behavior
Illicit Sexual Beavior | Ex-It Strategy

Ex-It Strategy
Podcast 3

Elizabeth Stephenson, Sarah Hink

You can listen to this episode of Ex-It Strategy on
Apple | Google | Spotify | Stitcher

Elizabeth: Hi everyone. Sarah and I are back. I’m Elizabeth Stephenson.

Sarah: And I’m Sarah Hink. Thank you for joining us today on the Ex-It Strategy.

Elizabeth: Yeah I know, we got some fun stuff to talk about.

Sarah: What are we talking about today?

Elizabeth: We’re talking about some illicit sexual behavior which means sex, but not with your spouse.

Sarah: Yes. Sex, but not with your spouse.

Elizabeth: Yes, that’s always interesting.

Sarah: There’s a lot to talk about with that.

Elizabeth: There is, we’ve got a whole lot to talk about and part of it is how does that affect you? if you’re going through a divorce or separation,

Sarah: Of course if you’re not even up to that point yet, and that’s going to just rock your marriage a little bit and probably gonna need to seek some advice.

So maybe wait for our next guest, that’s going to join us next time, that part, but it does have an effect on the actual divorce proceedings, relating to spousal support, and sometimes it can be related to custody. A little bit, but typically not the case.

Elizabeth:  True and a lot of times, I was mentioning this before; I always ask people why they are separating and what issues pop their heads up. No, and it isn’t. it’s not like 90% that this happened but it’s a fair amount I think in a lot of it, I have a lot more emotional story abuse, not abuse, emotional sort of commitment and the fairs that people. That’s almost the same thing. And sometimes it’s more insidious than if you had a sexual affair.

Sarah: And a lot of times there’s mental health issues that will lead to an affair. So it’s not like the affair just happened because they didn’t like you anymore. They fell out of love. They met someone else; it’s because maybe someone has a personality disorder and they’re just That’s their pattern of behavior. And I don’t know how many times I get someone they’re like, Oh, it’s his third marriage. I’m like, Oh, okay, how did the others end up the same way someone else,

Elizabeth: And I’ve had the, the new wife was the, what we call the paramour and in our linguists, and they did not see that coming.

Sarah: So the paramour is the partner that the spouse had the affair with; so the one outside the marriage.

Elizabeth: Right. And statistics show that, once a cheater, always a cheater.

Sarah: Always a cheater and then the likelihood of the marriage succeeding goes down each marriage.

Elizabeth: And second marriages are always hard, but I always do try to tell people that it’s not their fault their spouse went out and had sex with somebody.

Sarah: No, it’s hard to realize that, especially in the moment. but eventually down the road, you’ll see it. You’ll do your own soul searching, get some mental health help, get out there and talk to friends and you’ll see it eventually, a year later, people have such a different perspective on their relationship.

Elizabeth: It didn’t have anything to do with you, honey; it was all his issue. I always say that if you want out of a marriage then get out of a marriage, if that’s not what you want.

Sarah: Why don’t they do that?

Elizabeth: I don’t know why they don’t do that. Who knows? I don’t know. Maybe it’s,

Sarah: Some people are just, I think they feel like they can get control over it. So they tell their wife or their husband it’s over, I’m ending the affair. It’s fine. And then for some reason, they’re still going to maintain that relationship and feel like they can control it and live two separate lives.

Elizabeth: Or, it was nice to have somebody, as I say, ask you to the pro, it’s nice. If you’re getting attention. And that hasn’t been happening at home because of issues of intimacy, of not communicating. And all of a sudden somebody pays attention to you. That’s just human nature.

Sarah: Yeah. And you might try to explain that to the judge when they’re asking you questions about your affair. And the judge probably isn’t going to care why you did it, to be honest, not at that point.

Elizabeth: No and they’re not and when you tell people it’s, what’s crazy to me is it’s a crime in North Carolina,

Sarah: Right. It’s a criminal case.

Elizabeth: So you have to plead the fifth.

Sarah: Specifically it’s fornication and adultery under the criminal statutes.

Elizabeth: Crazy. What’s the penalty? If you…

Sarah: It’s a class two misdemeanor and, get this, it doesn’t just pertain to adultery. It’s any adult not married to each other. So it would be girlfriend, boyfriend shall lewdly and lavishly associate bed and cohabitate together. They’re guilty of a class two misdemeanor.

Elizabeth: Wait if you live together you’re guilty of a class two misdemeanor?

Sarah: Yeah. I’m going to plead the fifth on that one.

Elizabeth: I think you should.

Sarah: I’m going to do that because I’m not married.

Elizabeth: Yeah do that.

Sarah: And I advise my clients, too, if there’s a case where they’re going to be deposed, I tell them, don’t answer that, plead the 5th.

Elizabeth: I do that and like when they, when you’re answering a counter, a claim that has, it says you’ve done this and this. Judges know, and they can infer from that. that’s what you did, but quite frankly, and we’ll talk about alienation of affection and criminal conversation a little bit, but judges don’t care anymore. They just don’t.

Sarah: And so specifically, the alimony statute says that if there has been sex outside the marriage, and there’s no defense to it or whatever, then it’s going to be a “shall of be awarded alimony”. So a lot of people have in their mind, that means great, I am going to the bank on this. He cheated, he’s going to pay me $10,000 a month. It’s going to be awesome. But what happens is, what if your husband only makes 2000 a month?

Elizabeth:  Yeah. You’re not going to get $10,000 then.

Sarah: You’re not going to get that and you  might not even get hardly anything. There’s cases where someone is awarded like a dollar. There’s no specific amount that you’re going to be awarded to punish him.

Elizabeth: And I’ve had, okay. And the issue becomes, and we have another podcast we’re going to do later on, but I just got, just recently had a case where there was a lot of circumstantial evidence, prior to the separation, but yeah we can never prove it. And we, and I understand that completely.

He was, so the person was so hurt that they, it’s not like they want their pound of flesh, but they want the other person to apologize and say, I’m sorry. And sometimes you’re just not going to get that. And you gotta let it go.

Sarah: And it’s like that saying, holding anger is like drinking poison and expecting the other person to die. That’s kinda what it’s like. I get it. But we do like to collect some evidence of an affair. So what do we need to show to, show that affair happened?

Elizabeth: You’ll have to show inclination and opportunity, right?

Sarah: It means that maybe you have some evidence of hand holding or a letter, and then you also have evidence of following them to a hotel.

Elizabeth: Right or going to a dinner and coming out and having a little kiss on the cheek before they get in the car or something. You don’t have to catch him in bed having sex. You just have to show that they had the opportunity or that they are romantically involved in something.

Sarah: And we’ll have a private investigator on another episode, so they can talk to incidents where they have caught them in bed. So they haven’t gotten the real deal too.

Elizabeth: I had one that he, they were at a hotel and the PI dressed up as like the room service waiter and waited for them to come off the elevator. it’s “I got from service you” and then opened the door and one of the people like in the negligee. So he got a picture of that, so that’s inclination and opportunity.

Sarah: I don’t know what it is, but there’s like an uptick in sex in cars when there’s an affair. So if you’re going to have a PI, always just go follow the cars and you might get some.

Elizabeth: Yeah, people think you can’t see it or something like that.

Sarah: That you see!

Elizabeth:  Yeah you do. So it does affect if you’re in a separation and I say it only affects if you’re a dependent spouse or you’re a supporting spouse; then the fact your property; unless you are taking lavish trips with your paramour or buying jewelry, but…

Sarah: Yeah if you have a separate credit card with $10,000 a debt on it, typically we split the debt. But if it’s going to show that you use that card solely for the purposes of your affair, like purchasing hotels, plane rides, and gifts, then that’s going to be just fully contributed to you. That’s not for the marriage

Elizabeth: But in general, but you’re not going to get your, you’re not going to get your satisfaction by getting more than marital estate because somebody cheated on you.

Sarah: No, that’s not gonna happen.

Elizabeth: You and…you will be awarded alimony if you are a dependent spouse and that person has the ability to pay or if the dependent spouse is someone that cheated what happens?

Sarah: Yeah. If you’re a stay at home mom and maybe the pool boy comes around and your husband is out there working, and he’s making 200 K a year, he’s making enough to support you if you separate and there’s going to be a spousal support award. But if he can show that there was an affair, then you’re not going to get anything.

Elizabeth: You’re not getting anything. And I’ve had cases like that.

Sarah: That’s the strongest use of it.

Elizabeth: So you always, and we always say this, come see us before you do it. If you’re thinking about separating or you’re having an issue, just come talk to us because we will strongly suggest that you do not do that. Just hold off;  it’s a small blip in time. Hold off for six months. If this guy’s going to stay round, he’s gonna stay around.

Sarah: The pool boy?

Elizabeth: Well some guy…ha ha ha

Sarah: Or the husband sticks around and then maybe he’ll forget.

Elizabeth: That’s right. That’s right. So just, just don’t do it if you’re a dependent spouse because you really, it really is going to hurt you. And it’s really sad,

Sarah: Yeah and it’s not going to bring you that much gratification.

Elizabeth: Yeah. It won’t, I promise.

Sarah: Those relationships do not last and it might feel in the moment that it’s amazing, but…

Elizabeth: Not too much, but I understand you’re just missing somebody, and that intimacy and stuff. So you mentioned the forgiveness. What does that…how does that come into play?

Sarah: Well condemnation. They do, they say that “Okay I had the affair, I told them about it. We went to therapy. He forgave me. We stayed together for another two years. everything seemed to be better after that. There was no issues”. And then we separate after two years because I wanted to leave the marriage for some other reason.

So if you can show that the other person forgave you, that you moved on, that you reestablished your relationship, your marriage, and you continued to hold yourself out to people as being married and happy. Then that past affair really cannot be used

Elizabeth: Yeah. You really wipe the slate clean. You can’t go have another affair, but if you don’t and you really try to work on your marriage and then it’s…it never happened.

Sarah: Yeah. And that does actually happen a lot. I think I see it more so when a man has an affair and the wife wants to keep the family together, For the kids and then years down the line, she’s I think it’s just really hard to get over that.

Even if you say out loud that you forgave them for it, it’s going to breed resentment and you’re not going to be able to forget it. It’s just going to be really hard to survive that and our next guest will be able to talk to that subject.

Elizabeth: I just, personally, I don’t think I could do that, but that’s me personally, but a lot of people do. But come see us. Don’t do something or see some attorney, but don’t just hold on for a minute

Sarah: There’s cases where someone found out about the affair and then they use that anger in the custody case where I want the children completely, because I’m so mad at you. I’m going to be an awful co-parent and you’re not going to get to see the kids. I’m going to withhold them from you. Cause I’m just so mad about what you did. That’s not going to work out in your favor either.

Elizabeth: No, isn’t it doesn’t help your kids either. The affair doesn’t really come into play in custody unless the kids are with you and it’s three o’clock in the morning, you’re out with your girlfriend. But other than that, it doesn’t have a nexus to your children. And it’s hard. I understand you’ve been hurt so bad. and you want the other person to pay and the only way sometimes to get back at them is to use your children cause you know that’s what’s important to them and that’s just awful.

Sarah: It is awful.

Elizabeth: Don’t do that because judges don’t like that.

Sarah: They do not like that. They tell you to grow up, having to move on from that relationship. That’s right. They don’t own the kids.

Elizabeth: And they don’t mind sharing their opinion on the bench.

Sarah: So if there was an affair and obviously you’re not happy about this paramour, what can you do to hurt the paramour or sue them?

Elizabeth: Well we were one of the few, what do we say? Do we say six, six states that still have what we call alienation of affection, which is, you have to show that you had a loving and strong marriage and this person came in and destroyed that relationship. And then you can sue them for damages for destroying that relationship.

But again, that’s not always about sex. That’s about…I’ve had some that were mother-in-laws or employers came in and destroyed that marriage, but that’s a whole other subject, but, people can get big awards out of that.

Sarah: Oh, they do. So recently it was two years ago in Durham. They had a judge award $8.8 million for one of these cases.

Elizabeth: And what do you think about that?

Sarah: Well if you read it, it’s more legally into that because it wasn’t a jury case.The paramour, the defendant did not answer the complaint. And so there’s some legal issues and procedure done. If someone sends you a complaint for an alienation of affection, and they’re going to sue you better go talk to an attorney.

Elizabeth: You might want to answer that.

Sarah: Might want to answer it. You can’t just run away to Texas, which I’m pretty sure what this guy did and then not participate in. Then now they’re trying to overdo. It was like, sorry, you. Didn’t respond to the complaint. So all the allegations were admitted, summary judgment, and it sounded pretty bad. That 2.2 million of it were the compensatory…

Elizabeth: Compensatory damages

Sarah: And then the other were the punitive damages.

Elizabeth: The people come to me all the time because they think that’s going to make, that’s going to make them feel better, I want alienation infection. I want to do this. I want to sue him. And a lot of times you just got to say, hold on, hold your horses. There’s one. They don’t have any money. You’re not going to get anything. You’re going to spend a lot of money getting that, but you’re not gonna get anything. And the other issue is a lot of times it’s a coworker or at least I’ve seen that a lot. And you really don’t want your supporting spouse to lose his job.

Sarah: Yeah. You’re going to blow all that up. Not going to have a job, not going to be able to pay you alimony or child support if he is having to do that.

Elizabeth:  That’s right. it can be a good negotiating tool.But I. I don’t take those.

Sarah: Have you done a case?

Elizabeth: No, and I won’t take a case. I’ll draft a complaint. I’ll do that because I just, I feel like it makes people feel like chattel, like you own another person and they, you’re not an independent human being to make choices. It was a bad choice,I think,  but you get to make…that’s what it is.

Sarah: The basis of the law comes from like way back in the day and only men could sue for it because it looked at women as chattel as property. So if another man came and stole your wife, he needs to pay for her. To you.  So that’s where this law comes from. And that’s why there’s only six states left that haven’t overturned it for being unconstitutional.

So I don’t really agree with it at all. I do counsel my clients like I understand it,  I’ll send a letter, but let’s be serious. It’s expensive. There’s going to be depositions that you’re going to have to pay for discovery attorney’s fees. It might go to a jury. That’s a lot of work. You’re going to pay an attorney a lot of money. I really believe that it’s a rich person’s claim to pursue.

Elizabeth: It is, I agree.

Sarah: Yes, so…

Elizabeth:  And it’s going to screw up your co-parent…you’re never going to be able to co- parent again, if you start slinging it out.

Sarah: And you’re just going to sit in this pile of stress and anger for as long as this lawsuit goes on, which is a long time.

Elizabeth: Which is a long time.

Sarah: I always counsel them not to do it, but if someone, if one of my clients said, I hear you, Sarah, I understand it. It’s going to be expensive and it’s stressful. And I still want to do it. I probably still do it. but I haven’t done it yet. I have defended against them. so I’ve defended against lawsuits for that. I like being on the defendant’s side. I like going to court and trying to argue a constitutional defense to it that keeps getting rejected. But one day I might win one, I don’t know, maybe North Carolina we’ll see the lights, it’s an interesting case law on it, but, it’s just, like I said, it’s a rich person’s claim to pursue and in that case, the wife was extremely wealthy going through the divorce, getting tons of money. She had nothing better to do, but sit in her house and like mess everyone’s life and life up that she thinks ruined hers.

Elizabeth: Meaning the other avenue is the paramour can become a great asset to you because one, they don’t want to be pulled into this stuff, this mess so they’re saying to the boyfriend, to your ex to say, you need to settle this. And so it can work in your favor without having to go to court, you can still get a good outcome without having to go to court.

Sarah: Put a waiver in the separation agreement that you know, you’re… I’m not going to sue her, but I want more of the house. So I want more money. How much is her relationship worth?

Elizabeth: Exactly. And how much is that waiver worth? And so then there’s the other one that’s criminal conversation.

Sarah: Yes, that’s just sex.

Elizabeth: All right. The title of it’s funny, cause you ain’t talking in bed. You’re having sex in bed and that’s all you have to prove is that they had sex together.

Sarah: One person was married. Your spouse and then they had sex with someone else while you were still married.

Elizabeth: That’s…you get a picture of that? That’s a pretty slam dunk. Yeah  and you can settle those pretty quickly.

Sarah: And they’re always filed just in conjunction with alienation of affections claims, but that is in North Carolina. It’s still going strong. Some of these other states that have it, they say that they actually aren’t pursued but for some reason here people love to file them.

Elizabeth: Yeah.

Sarah: It’d fun for us as an attorney, but, like I said, I don’t really agree at all with what it’s founded on or that people are property and chattel and…

Elizabeth: Right and that’s not really…our job isn’t to put our own position into it. It’s to advocate for our client, if that’s what they choose to do. And we’re comfortable with doing that, That’s okay.

Sarah: Yeah. Like instead of spending $40,000 on an attorney to pursue that action spend $40,000, like on a vacation, take a sabbatical, go to the islands and do some yoga.I feel  like that’s better.

Elizabeth: I know. Because a year down the road and that’s not going to matter. You’re going to be okay.

Sarah: Post some great pictures on Instagram. You’ll be the winner of that.

Elizabeth: Living well is the best revenge.

Sarah: It truly is. And Jen is showing us something that says, ladies cheat too. I try to stay balanced…

Elizabeth: Trying to say gender neutral.

Sarah: There’s moments in time and during this, I did say him or her cheating, but yeah, a lot of times those are the dependent spouses that cheat.

Elizabeth: That’s what we were talking about. It’s just don’t do that. I’ve got…I’ve had cases and some now say that…some supporting spouses will say I don’t care because that’s where my children live and I want…and want her to be able to provide for them and…

Sarah: What a nice person.

Elizabeth: I know that… I haven’t heard that often, but you…but it’s going to hurt when it…but think about what it’s worth is that all I can say.

Sarah: Yeah. I had one case like that recently where I feel like we really could have hammered the cheating wife home. At first he was really angry, but then he decided, no, I want to be the bigger person in this. And he did do that when you know the kids, they want to live there. She wants the house. It’s fine. I will actually pay her some alimony and in my brain I’m like, Oh, I’m gonna look like the losing attorney in this one. But it’s what my client wants…

Elizabeth: And at the end of the day it worked out for them.

Sarah: Yeah. As long as he’s happy, then that’s what matters. And we’ll follow your lead on that. We’ll counsel you against it. And then if you still choose to go down that route, then fine.

Elizabeth: In our next…our guest coming up…he’s going to talk about that, about can you repair from an adulterous affair? Can you repair that? Can you get back together? What happens if you can’t? What do you need to do if you can? So it’s not always like the end of the road, but I think it’s a great signal that there’s some problems that you need to, probably need to take care of.

Sarah: And that is just some heavy stuff and, anytime you’ve been in a relationship or some kind of news or something like that shocks you it’s trauma. And so you have to learn to deal with that trauma and then deal with living with that person that caused the trauma. And like you said, I don’t know if I’m a big enough person to do that.

Elizabeth: Yeah, it’s not our choice. It’s not our life to live. And that’s why I think that we’re…I think that’s why we’re pretty good attorneys is that we can step back and take ourselves out of the situation and advise our client on what to do best for them.

Sarah: Exactly. And I bite my tongue whenever I want to say, I told you, so if they come to me once and then go back and then two years down the road, but I don’t say that.

Elizabeth: No and then you find…because some people are like what if I had bitten. What if I don’t do this and it did work, you find there’s some regret.

Sarah: And if there’s kids involved, then there’s definitely something else to consider.

Elizabeth: Absolutely.

Sarah: When you try to work it out and just because you do stay a little bit longer and try doesn’t mean that there’s that forgiveness either.

Elizabeth: Correct.

Sarah: So there’s…there’s differences in how long you stay and what you do and how the relationship really is. So that’s why it’s good to see an attorney. Even if you decide you are going to stay and work it out during that time period, go see an attorney and know all that you can stay in the household together, try to work it out, but also protect yourself from the future. If it doesn’t work out…

Elizabeth: And you just gotta be educated. That’s what we do. That’s what we do. And that’s what we try to help folks with. We’ll help you. As best we can, but at the end of the day, we know it’s your decision and we’ll support you in whatever decision that you make.

Sarah: And we’ll do the best for you and the kids and acknowledge that if you have kids together that you’re going to have to try and co-parent. I mean I tell my clients to get over it sometimes and focus on the kids that I can tell that they’re acting petty and it’s not in the best interest, and to go seek some counseling or something to deal with that anger,

Elizabeth: Right.

Sarah: That’s just. The worst.

Elizabeth: Got to do it.

Sarah: And it’s the other person’s fault completely. It is. I hear ya on that. So I guess the gist of this is if you’re going to have an affair, wait until you’re separated or advice to you, be super careful. Sometimes there are clients… we represent both sides. Don’t do it. And go talk to an attorney or a counselor about your own situation. If there’s a coworker that you have romantic feelings about. Good Lord. I don’t know why that happens so much, but slow your roll.

Elizabeth: Well because you’re in close proximity with him all the time and kind of a nice.

Sarah: Not even just your relationship you’re ruining, but your work.

Elizabeth: I know, but your brain is working at that point.

Sarah: Brain doesn’t work. Just thinking with those other parts.

Elizabeth: Okay.

Sarah: And Jen’s sending us another message that we can’t fix assholes.

Elizabeth: No that’s true. But it’s not our job to fix assholes.

Sarah: No, it’s not. We have to learn. We have to learn boundaries, learn how to deal with them

Elizabeth: And not feed into… there’s so many times I want to go like sit with somebody and go you’re right. You should feel this way. Let’s go get it, but you can’t do that you know? And I understand their need to, to get back at somebody, but it’s just not, it’s not fruitful. It’s not helpful. It doesn’t help you make…

Sarah: You can validate those feelings and acknowledge them and then move on to being productive.

Elizabeth: Correct. Correct.

Sarah: Yes, so to all those cheaters out there ain’t that some bullsh$t.. Elizabeth, I think that covers the general idea of these cheating spouses and how that applies. So thanks for joining us today. I’m Sarah Hink.

Elizabeth: I’m Elizabeth Stephenson.

Sarah & Elizabeth: Ain’t that some bullsh$t.


Previous Post
A Guide to Understanding Alimony
Next Post
Understanding NC Child Custody Laws