Non-Standard Claims

For some people, claims that are considered “typical” in domestic cases don’t always fit. Many legal remedies that apply to married couples won’t work for people in unmarried, long-term relationships. Sometimes situations arise between couples who are married that can’t be resolved with standard claims. Fortunately, there are creative solutions to address a variety of problems that can often arise when relationships fall apart.

Breach of Promise to Marry

Like alienation of affections and criminal conversation, breach of promise to marry is tort that is considered a “heart-balm” action. This claim does not require a written contract between would-be spouses to be actionable. Rather, courts look to the conduct of the parties and the overall circumstances of the situation to determine if a promise to marry has been made—for instance, spending time together, making wedding plans, purchasing/exchanging an engagement ring, and sexual intimacy. In addition to proof of the parties’ mutual promises, there must be evidence of consideration, the parties must be of the age to contract, and they must be otherwise be able to marry.

A promise to marry can be breached in several ways, including one party unilaterally breaking off an engagement, failing to get married in a reasonable time, and marriage to another person.

Tort Claims

Many domestic cases involve actions on the part of one party that feel instinctually bad, but which don’t necessarily lead to any remedies in a typical family law context. To fill in those gaps, tort law allows a variety of solutions – the possibilities are almost endless, and the following examples are not exhaustive:

Battery & Assault

Battery is intentional, harmful, or offensive contact with another person without that person’s consent. Many people may think of this as a criminal action, but battery can be a civil action as well. It’s important to note that battery does not require that the actor have hostile intent, only intent that the resulting contact occur.

Assault can be thought of as an attempted battery. Assault occurs in situations where the actor intentionally causes a person to believe that they are going to commit a battery against that person. It requires a showing that the actor intentionally placed a person in reasonable apprehension of an imminent harmful or offensive contact.

For both battery and assault, the actor may have “constructive intent” – although the actor may not have intended the actual result to occur, he or she engaged in conduct that threatened the safety of others and is so reckless or indifferent to the possible consequences that intent can be inferred.

Tortious Interference with Custody

In situations where an individual – who can, but does not have to be, the other parent – interferes with one parent’s custodial rights, that parent can bring a claim for tortious interference with child custody. In order to prevail, the parent has to show that he or she had a superior right to custody of his or her child, the other party interfered with that custody (by abducting or taking away the child, or by inducing the child to leave) with the knowledge that the parent had superior custodial rights, and that the parent suffered damages because of that interference.

This cause of action combines tort law and Constitutional law, and it’s important for parents to understand and recognize their Constitutionally-protected rights as parents for their children. More information about the rights and obligations that parents have can be found on our pages for child custody and grandparents’ rights.

Partition of Real Property

For couples who own property together but are not married, partition of real property may be useful. This situation may also arise when a couple was married, owned property as a married couple, but divorced without an equitable distribution action pending. A partition action is a special proceeding in which a person who claims some sort of ownership in real property as tenants in common or joint tenants with right of survivorship may petition the court to divide the land between the owners. Each and every joint tenant has the right to petition for a partition in order to have his or her share of the land individually.

There are two types of partition of real property: in kind and by forced sale. Partition in kind occurs when a court divides the land itself and awards portions of that land to each individual tenant. Although partition in kind is favored, but is often impractical or impossible. A tenant in common is entitled to partition in kind, and a partition by sale may only occur in the event that it is necessary to avoid injury to one or some of the parties. Often, a court will order a forced sale and divide the proceeds between the parties.

Defamation

In North Carolina, defamation includes slander and libel – two similar but distinct tort claims. Libel per se is “a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.” Slander per se is “an oral communication to a third party which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease.” Note that there are also claims for libel per quod and slander per quod, both of which require proof of special damages.

There are five essential elements to every common law claim for defamation, including both libel and slander. To meet his or her burden, the plaintiff must show that the statements in question were (1) false; (2) defamatory; (3) of or concerning the plaintiff; (4) published to a third person; and (5) resulted in damages to the plaintiff.

North Carolina law draws a distinction between private and public figures for the purposes of defamation. In family law cases, defamation claims are more likely to be between private individuals rather than involving a public figure of some sort. For private individuals, the person who has been defamed does not need to show that the defendant acted with actual malice in their statements.

A “defamatory statement” is one that “tends to injure the reputation of a person referred to in it.” Note that statements that are “outrageous” or “not reasonably believable” may not be considered defamatory.

Innocent Spouse Relief

For many couples, one person handles the finances, including the filing of joint tax returns. However, under federal law, spouses who file their tax returns jointly are held jointly and severally liable for any deficiency on their returns – this means that either spouse could be held individually responsible for the full amount of the deficiency. What does this mean for the spouse who did nothing but sign his or her name on the tax return? In some situations, the so-called “innocent spouse” will not be liable for the deficiency. Although the tax law surrounding innocent spouse relief is complex, it provides several avenues for relief for a spouse who truly did not know about the facts leading to the deficiency.