Your Husband Cheated. Should You Be Able to Sue His Mistress?

Life & Love
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“Did you say things like you love Elizabeth Clark?”

“Yes. She was my wife. Of course I would have said that at the time.”

“Okay. And did she say she loved you back?”

“Yeah, I’m sure.”

“And did you love her at the time?”

“No.”

“You’re saying you didn’t love your wife.”

“No.”

“You just said you loved her?”

“Yes.”

That was the first time that Elizabeth Clark was in the same room as her ex-husband, Adam, and his new partner, Kimberly Barrett, the woman he’d cheated with. Though Adam and Elizabeth had been sharing custody of their two children since they separated, she hadn’t really seen Kimberly “face-to-face,” just brief flashes through car windows and the like, not “in the flesh.” But now here was Kimberly, seated to Elizabeth’s left, while her husband of nearly eight years sat on the witness stand answering questions about the demise of their marriage. As he spoke, Elizabeth tried not to look at anyone but the lawyers and the judge. But she believed Adam was lying. At the time of their separation, he had told her how much he truly cared about her, and she believed him. So much so that she sued Adam and Kimberly. In particular, she sued Kimberly for “alienation of affection,” a legal term used to describe the breakup of a marriage by a third party.

Cases like hers are rare in the U.S. overall, but they are somewhat common, though controversial, in North Carolina, where Elizabeth and Adam live. For such a claim to be successful, the plaintiff has to show that some degree of love existed in the marriage; that this existing love and affection was alienated and destroyed; and that the malicious conduct of a third party contributed to its loss. To defend herself against the lawsuit’s claims, Kimberly argued Adam’s affection couldn’t be alienated if it didn’t exist in the first place. As his testimony went on, Elizabeth couldn’t help but break down crying. But, she says now, “The only way to help yourself is standing up for yourself.”

elizabeth jamison

Alienation of affection lawsuits are rare in the U.S. overall, but they are somewhat common, though controversial, in North Carolina.

MIKE BELLEME

The story of how Elizabeth and Adam Clark got to the courthouse that day in August 2019 begins about a year earlier at a restaurant in Fayetteville, North Carolina, where Elizabeth was working as a bartender. One night as she poured beers for two attorneys, Michael Porter and Jose Coker, she told them about how her marriage had ended because her husband had cheated with another woman and gotten her pregnant. Porter and Coker said they thought they could help her, and the next day, Elizabeth found herself sitting in Porter’s office laying out evidence as they explained how she might be able to sue for alienation of affection.

The legal argument behind such cases dates back to colonial times, when wives were considered the property of their husbands. Under common law inherited from England, men (and only men) could sue for harms they faced when women were unfaithful. Sex wasn’t a prerequisite. A mother-in-law who poisoned a wife against her husband could be labeled as an alienator; so could a church that convinced a wife to join the convent.

In the nineteenth and early twentieth centuries, alienation lawsuits flourished in the U.S. Even one of the nation’s most esteemed families was ensnared: In 1911, the millionaire playboy Alfred Vanderbilt married a divorcée whose husband threatened to sue for alienation. (The two settled out of court.) Many believed the lawsuits helped to reinforce good morals, though critics argued such policies were sexist. In response to demands for equality, states started to enact Married Women’s Property Acts in the 1800s, granting married women the ability to own property and collect wages—and file alienation of affection lawsuits.

“The only way to help yourself is standing up for yourself.”

But the move toward equality also caused a reconsideration of the legal tactic altogether. Could spouses really be considered property that could be stolen? Over time, many came to believe the markers of a modern marriage—respect, admiration, teamwork—could not be mandated by a court. The media showed how claims could be used for blackmail, greed, and revenge, and in the early 1900s, states began repealing alienation of affection statutes. Today, they are allowed in just six states—Hawaii, New Mexico, North Carolina, Mississippi, South Dakota, Utah—but are infrequent in all but North Carolina, which has the highest number of such lawsuits in the nation. The Family Law Section of the state’s bar association has tried to persuade legislators to revoke the tort, but has been repeatedly thwarted by socially conservative organizations. “This tort has a strong lobby,” says Carolyn Woodruff, a North Carolina attorney. Experts estimate the state sees about 200 such cases each year. Both men and women sue, typically targeting defendants capable of paying the awards. Because lawyers are “savvy” about vetting cases, Woodruff says, “most plaintiffs win.”

When her courtroom battle began in the summer of 2019, Elizabeth Clark knew what she was up against. Both she and Adam took turns on the stand describing their marriage. They had gotten engaged in 2010 after dating for more than a year. They planned their wedding in a hurry because Adam, then a captain in the U.S. Army, was stationed in another state. She bought a wedding dress at Kohl’s, assembled the cake from a mix in a box, and invited whatever family could make it. But, as she told the jury, the weekend of the ceremony, Elizabeth discovered Adam had been messaging other women. He consoled her, explaining it away, and Elizabeth celebrated as best she could. Still, after the wedding, Elizabeth couldn’t shake the feeling that Adam was cheating. She created an ad on Craigslist, where she had found him trolling for women, to see if he would reply. Instead, she wound up connecting with a man she’d previously dated, she told the jury, and the two of them carried on an affair for a few months before Elizabeth and Adam confronted each other about their mutual infidelities and promised to recommit.

After that rocky start, things seemed to improve. They went to marriage retreats, talked to a chaplain, and tried to strengthen their bond by writing love letters. Their son was born in 2014, their daughter in 2015. Adam proved himself a devoted father. “I thought it was going very amazing,” Elizabeth told the jury. “He was very loving, very caring, very affectionate.” Little did she know, Adam still had reservations, which he confessed to years later in court. In the spring of 2016, Adam met Kimberly, an army ob-gyn, when he was sent to Virginia for several months of leadership training. He and the 14 others in his class, including Kimberly, became close, working out as a group and periodically having dinner on weekends. Elizabeth felt a change in her husband’s behavior. She testified, “He wasn’t coming home as often. He started staying up there. He wasn’t texting me as often.” Late one night, she called his room and couldn’t reach him. Through a tracking app, she discovered his phone “pinging [at] the other end of the hotel.”

When Elizabeth asked Adam about his changing behavior toward her, he brushed her off. But when he came home one July weekend, Elizabeth checked his phone and saw he was texting with someone. When she called the number, she heard a woman’s voice, she told the jury.

elizabeth jamison

Elizabeth Jamison (formerly Clark) and one of her lawyers, Michael Porter, who told her she might be able to sue for alienation of affection after learning of her husband’s affair.

MIKE BELLEME

Elizabeth saved the number and was able to figure out the woman’s name. When she asked Adam if he knew someone named Kimberly, he insisted they were just friends. But, Elizabeth would testify, she remained suspicious. Then, in August, she got the confirmation she was seeking: Adam had sent Kimberly a photo of his penis.

Two weeks later, Elizabeth and Adam separated. North Carolina mandates a separation agreement be in place for a year before couples legally file for divorce. The period is supposed to be a time for both parties to think about their decision. Elizabeth and Adam continued to see each other in the messy, complicated way many newly fractured couples do. “He would keep coming over and seeing the kids and in between—I mean, I was doing a lot of crying. And he was holding me, and we had sex a couple of times,” she told the jury. They continued to see each other on and off for months. She wanted to make the marriage work. In August of 2017, to keep him interested when they were apart, she sent him a topless photo.

The final straw came soon afterward, when Elizabeth learned Kimberly was pregnant. Adam had given her his sperm to use for IVF treatment, according to trial testimony. Kimberly told Elizabeth’s lawyer in court she wasn’t aware of the extent of the sexual relationship Adam was still having with his wife at the time:

“Did your partner tell you that he was still telling his wife [at] the time that he loved her and sending sex videos to each other?”

“No.”

“…What was he telling you about the relationship?”

“He told me their relationship was over, that the divorce would be finalized September 11th.”

“He lied to you; didn’t he?”

“I don’t know—”

“He didn’t tell you about that?”

“He didn’t tell me about this.”

elizabeth jamison

The final straw came when Elizabeth learned Kimberly was pregnant. Adam had given her his sperm to use for IVF treatment, according to trial testimony. In August 2018, Elizabeth filed her alienation of affection lawsuit.

MIKE BELLEME

It is not unusual to see wronged spouses in North Carolina be awarded millions of dollars in damages. In 2011, a Wake County judge awarded what is believed to be the largest alienation of affection judgment in state history—$30 million—to Carol Puryear, against Betty Devin for breaking up Carol’s marriage to her husband, Donald Puryear. Proponents say these cases protect families by deterring infidelity and treating marriage as a contract like any other. Without such repercussions, what is there to prevent cheating? “If you see these large monetary awards, and you’re considering having an affair, you might think again about it, right?” says Marcia A. Yablon-Zug, a family law professor at the University of South Carolina School of Law. On the other hand, she says, some of the judgments in North Carolina have been excessively punishing, especially given how common adultery is. And while such cases are known as “heart balm”—torts meant to soothe the heart of someone who has been wronged—the acrimony caused by the lawsuits arguably creates more strife for the plaintiff and their family, especially when there are children involved. Others say the fact that such cases are rampant in North Carolina but nowhere else calls their legitimacy into question.

“The good outweighs the harm,” insists Porter, Elizabeth’s attorney. “The alternative would be that she would have no recourse.” Elizabeth and Adam’s divorce was finalized in February 2018; she received nine months of alimony, or $4,950.

In the months that followed the divorce, Elizabeth and Adam’s relationship grew more combative. Adam and Kimberly built a house on land he had once shared with Elizabeth. Over time, Adam disputed the amount of child support he had agreed to during the separation and ultimately stopped paying it, according to trial testimony. Elizabeth also saw the topless photo of herself that she had sent Adam (and only Adam) posted online in a solicitation for sex. (An investigation later traced the origin of the photo to Adam’s IP address.)

elizabeth jamison

Elizabeth was awarded $3.2 million. Adam was ordered to pay $2 million; Kimberly, the remaining $1.2 million. While it is unlikely Elizabeth will receive the full award, her lawyer is confident she will receive some portion over time.

MIKE BELLEME

In August 2018, Elizabeth filed her alienation of affection lawsuit. In court, Porter presented Kimberly as desperate to start a family. “Ladies and gentlemen, she had spent her whole adult life on her career, which unfortunately sometimes leads you to a place where you’re over 40 and you realize, Oh no, I never had that family that I also want.… And now here I am and it’s getting too late.” So, Porter argued, she decided to steal the life that Elizabeth had built for herself: husband, children, and home. The defendants’ lawyers presented the marriage as troubled from the start and Elizabeth as an adulterer in her own right.

After 51 minutes of deliberation, the jury came back with a verdict: Elizabeth was awarded $3.2 million. Adam was ordered to pay $2 million; Kimberly, the remaining $1.2 million. The judge also awarded Elizabeth $10,000 in liquidated damages under North Carolina’s so-called “revenge porn” statute for the topless image Adam had posted. While it is unlikely Elizabeth will receive the full award, Porter is confident she will receive some portion over time. Adam and Kimberly, who have since married, are appealing.

Elizabeth reverted back to her maiden name, Jamison, and has also remarried. When she meets the new Mr. and Mrs. Clark, the interactions are formal. Even though, at press time, she hasn’t seen any of the money, Elizabeth says she’s gained something intangible from the experience. “I just want people to know that it’s okay. Help yourself. It’s the only way,” she tells me. “This was my way of going, ‘Don’t be afraid. Speak out.’”

This story appears in the February 2021 issue.

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