The cause of action of breach of promise to marry is related to the “heart balm tort” of alienation of affections.  The former is the result of a breach before marriage and the other may be brought if a third party has an affair with a plaintiff’s spouse during the marriage.  Either one of these claims may be brought by a man or woman.  The unpredictable amount of a damage award may cause a defendant to settle because a plaintiff may receive punitive damages if they prevail on either of these claims.   

Breach of promise to marry has survived since the late 1800′s and is still brought by plaintiffs in North Carolina.  One need only look to the recent case of Dellinger v. Barnes (No. 08 CVS 1006), 17 December 2010.   A jury in McDowell County, North Carolina awarded the plaintiff with damages of $130,000.  The plaintiff was a young woman that was dedicated to helping her fiance to start several businesses, however, he paid her a small amount of salary.  The defendant broke his promise by starting a relationship with one of his other employees after which he broke off the engagement to the plaintiff.  The plaintiff’s counsel showed the jury that the Defendant not only broke his promise to marry, he also took advantage of her reliance in that she worked hard alongside the defendant because she believed she would share in the success of the businesses.  For more information on this case see below. 

Due to the above results, one may ask whether they should enter into a prenuptial contract (aka a “prenup”).  A prenup may be helpful in the long run for certain people.  In the past, the very act of being asked to sign a prenup may have been seen as insulting and a signal that the marriage is starting on rocky ground. Now, more individuals consider a prenup as an essential planning document that simply makes good sense.  While discussing the contents of the prenup, many couples resolve difficult financial questions at a time when they are most in love.  For more information on things to be included in a prenup see www.ricefamilylaw.com.

This author sees a place for the cause of action of breach of promise to marry because the facts may be different from the 1800′s but the basic theme still occurs today.   However, discussing finances and a prenup may prevent costly litigation like in Dellinger v. Barnes or after a marriage.  Couples should have a serious conversation about finances before deciding to get married, and couples should seek the advice of a licensed attorney to draft an enforceable prenup.

For more information about Dellinger v. Barnes, read the article  in N.C. Lawyers Weekly entitled “Man must pay jilted fiancee $130k for reneging on engagement”, by Sylvia Adcock, published on January 6, 2011.

If possible, both parents should read A Child’s Bill of Rights and sign the agreement before sitting down with the kids.

When & how to tell children about divorce

When you and your spouse are absolutely certain that you will be separating to obtain a divorce, you should jointly decide when to tell the children and what to tell them. It is best to do this shortly before one parent moves out of the house. Both parents should be present when the children are told and all children should be told at the same time. This is a mature, responsible way to deal with the issue and it sends a positive message to the children about their future. Arguing about what to tell the children in front of the children is a recipe for disaster.

What to say to children about divorce

Above all, reassuring the children that both parents have unconditional love for the kids is paramount. It is important to reassure the children that it is not their fault and that you both love them and will continue to be with them. Above all, be honest and remain calm for the kids so that they can see that things will be ok. Neither parent should be blamed for the impending divorce. Kids often expect an explanation for what is happening and it is appropriate to give a general explanation but no specific details should be shared about why you are getting a divorce. However, specific details regarding where the kids will live, where the departing parent will live and how often the children will see and spend time with each parent will comfort them. Therefore, working all of this out in advance is best for the children and will make the “telling” process simpler. One therapist, has created an interactive web-site where you can create a personalized storybook for use in telling your children about the divorce.

What children want to know

• Where will I live?
• How often will I see dad? …mom?
• Will I change schools?
• Will I stay with my brothers and sisters?
• What happens to my dog, cat, etc.?
• What happens if I get sick?
• Did I cause this?

What not to do

Children should not be expected to deal with adult problems. Here are just a few definite “no’s”:

• Never blame the child for the divorce or make him or her think it is their fault.
• Don’t put the children in the middle of an argument let alone an all our war.
• Don’t pull the kids out of class at school to tell them. Do it at home in a safe place.
• Don’t blame the other parent or say bad things about them.
• Don’t ask the child what he or she wants to do. You are the parent and the child expects you to be in charge.
• Don’t pressure the child to choose sides.
• Don’t make promises to the child for the purpose of gaining favor.
• Don’t use guilt!
• Comfort your child; don’t expect the child to comfort you!

Get professional help

Each family situation is different. Before you sit down with your children, you should consult an attorney and work out the specifics on child custody and visitation. You should also consult with a licensed mental health professional for advice on how to address your children’s needs before you break the news. At Rice Law, we often work with Denise Scearce, MSW, LCSW and Bridge Builders Counseling and Psychotherapy in Wilmington.

Sources
http://helpguide.org/mental/children_divorce.htm
http://love.ivillage.com/lnsproblems/lnsdivorce/0,,p5dw,00.html
http://singleparents.about.com/od/communicatingwiththekids/tp/Tell_the_Kids.htm
http://life.familyeducation.com/divorce/parenting/45564.html

1. Mums the Word

Don’t tell anyone what you are doing and don’t leave a paper trail through e-mail, credit cards, checks, cell phone bills, or strange people calling your house asking for you until you are legally separated.

2. Lawyer Up

Seek the advice of a divorce attorney who practices NC family law before you do anything. Action (and/or inaction) can significantly affect the outcome of your divorce, alimony, child support, property division, and more. Don’t screw up by trying to do it yourself! There are many pitfalls and traps to handling your own divorce. Remember the old adage: “The lawyer who represents himself has a fool for a client.”

a. Paperwork Traps
John* downloaded a form from the Web or got a form from the library and signed it with his wife, Sue*, only to spend more than twice the normal litigation costs trying to set aside the document, correct problems with it or find that it is enforceable to John’s detriment.

b. Decision Traps
Sue agrees to a property settlement without considering John’s pension because she did not know what property to consider as marital or failed to conduct discovery resulting in the loss of her share of the biggest asset they had together. John agrees to pay $800 per month in child support to Sue when the guidelines would have only required $600 per month. Sue leaves the kids with John for a week and then she takes them for a week. By the time the couple gets to court, Sue doesn’t like this arrangement but the Court finds this is the status quo and should be maintained pending a final hearing.

c. Information Traps
There are some things you really should not tell your spouse if you are getting divorced. Don’t talk about extramarital affairs. If asked under oath, you must be truthful. But at this stage, you need counsel on what to do and what not to do.

d. Other Traps
There are many other traps. Obviously, we can’t teach you three years of law school in one article! See our article on selecting a divorce attorney. Even if you can’t afford a full service law firm, you can consider unbundled services where the lawyer does part of the work (e.g., prepares pleadings, agreements) and the client acts as their own lawyer.

3. See a Counselor

Make sure that both your heart and your head want the divorce. If you have not tried marital counseling, try it. If your spouse will not go, go by yourself. We ask all of our clients if they are sure they have exhausted steps to save their marriage and truly desire a divorce. Despite this, many reconcile after the lawsuit is filed. Even if you are absolutely sure you want a divorce, talking to a counselor may help you (and your children) make a more healthy transition. If you have children, the counselor can give you good advice on how to tell the kids. Save yourself time and money and the potential damage done by the litigation process itself and talk to a counselor. If you need a referral, call Rice Law PLLC at (910) 762-3854.

4. Copy

Make copies of everything you will not be able to put your hands on after you separate (e.g., children’s school records, medical records, pictures, tax returns, pay stubs, routine bills, credit card statements, wills, deeds, copy of titles to cars and boats) and store these copies off-site. If you take originals, you are responsible for safeguarding them and may have to return some or all to your spouse. The trunk of your car is not off-site! Buy a file cabinet and store it in a relative’s or friend’s garage, or rent a safety deposit box or storage unit.

5. Stay Put (for Now)

Stay put until you do #1 and #2—unless you are the victim of domestic violence. Your attorney will advise whether it is best for you to leave the marital residence. If your spouse is abusive, seek immediate help from a domestic violence shelter in your county; don’t follow the steps enumerated above—seek immediate help!

6. Safeguard Communications

While you are still living together, it is not a crime in the State of North Carolina for your spouse to snoop through all of your stuff. He/she may even put spyware on your computer to monitor your activities. Consider getting a P.O. Box to receive secure mail, open a new e-mail account (e.g., gmail) to receive secure e-mail, and check your e-mail account on a computer to which your spouse does not have access.

7. Safeguard Assets

Beginning right now, start taking out or making a list of things to take out of the house that are your purely personal possessions and cannot be replaced (e.g., class ring, heirlooms, children’s photographs). When you separate, you may need to freeze or close certain accounts. You may need your attorney to obtain an injunction preventing you and/or your spouse from disposing of certain assets. Talk to your attorney for instructions.

8. Open Bank Account

Go ahead and open a checking/savings account at a different bank from where you and your spouse currently bank. You will have to account to your husband/wife for the funds you deposit before date of separation but you will need a separate account.

9. Apartment/House Hunt

You may need a temporary place to stay. If you have children, the temporary home should be conducive to their needs (e.g., separate bedrooms). Investigate your options and the cost.

10. Get Support

You may need short term financial support from your family to help cover the costs of moving, attorney fees, and living costs during the transition. You may also want to consider attending a divorce support group or a cooperative parenting program to learn how children of divorce are affected and what you can do to help them cope.

Published August 27, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

*Author’s Note: This article is not intended to be a comprehensive analysis of the steps you should take when contemplating a divorce. “John” and “Sue” are fictional characters who do not represent real people but who do represent true situations. We strongly encourage you to consult with a licensed Divorce Attorney in the State of North Carolina before taking any action.