A Charlotte man blames the breakup of his marriage not only on the other guy, but also on the online infidelity service that he says made it happen.
“Life is short,” the Ashley Madison website coos. “Have an affair.”
Robert Schindler of Charlotte says his ex-wife did just that.
So, Schindler is suing her alleged partner in the tryst, along with Ashley Madison and its Canadian corporate parent, Avid Dating Life Inc.
At play here is a legal clash between the old and the new. North Carolina remains one of only a half-dozen states that still awards punitive damages when a marriage fails and someone other than the husband and wife is to blame.
The so-called alienation of affection/criminal conversation laws have survived numerous efforts by judges, lawyers and some legislators to repeal them, and in recent years they have led to million-dollar judgments for wronged spouses.
The Schindler case attempts to apply the centuries-old marriage statutes to a company marketing the new-age phenomenon of online cheating. Ashley Madison, which claims clients worldwide in the tens of millions, bills itself as “the most recognized name in infidelity.”
Schindler’s 2012 complaint, which was back in Mecklenburg Superior Court last week for a preliminary hearing, accuses the company and Eleazar “Chay” Montemayor of Charlotte with working together to seduce Schindler’s wife, ruining his 13-year marriage.
According to the lawsuit, Montemayor and Schindler’s wife began their affair in 2007 after meeting on AshleyMadison.com. Montemayor also was married at the time. They became husband and wife in October 2012.
In his lawsuit, Schindler claims that the love and affection he and his wife shared “was alienated and destroyed by the defendants.”
He asks for damages of more than $10,000 under two claims: alienation of affections and criminal conversation, which is legal shorthand for extramarital sex.
Schindler’s former wife did not return calls for comment this week. Citing the lawsuit, Eleazar Montemayor declined to discuss the case Wednesday.
His co-defendant – and the founder of Ashley Madison – told the Observer in an email this week that holding his company liable for the breakup of a marriage “defies most people’s common sense test.”
“Would the courts also hold a hotel room accountable? A cellphone operator if his wife called her lover on it? The car she drove?” asked Noel Biderman, a former lawyer and sports agent who started Ashley Madison in 2002.
While Ashley Madison allows its clients to communicate with each other, “we in no way participate in any ‘offline’ encounters,” Biderman said.
“I think it would be an incredibly slippery slope to attempt to espouse blame to all the technology and inanimate objects that were utilized in an affair.”
Schindler’s attorney, Chris Johnson of Wilmington, says Biderman’s argument misses the point.
“You can use a car to drive to school. You can use a car to drive to work. You can also use a car to have an affair. But that’s not the car’s sole purpose,” Johnson said.
“That’s the difference in this website. It’s very specific. It promotes affairs. Sadly, it’s bad enough that it happened to Robert Schindler. But it happens to many others, too.”
Cheat and pay
Despite steps taken by the legislature in 2009 to narrow the alienation law, the monetary penalties for messing around with someone else’s marriage have grown exponentially in the past three years.
In 2010, a Guilford County jury awarded a wife a $9 million judgment against her husband’s mistress.
That same year, a Chapel Hill physician won almost $6 million from her former best friend, whom she had invited to visit and help her get ready for her first child and who had an affair with the physician’s husband.
In 2011, a Wake County judge handed down the largest alienation award in the state’s history – $30 million – after the former wife of a Raleigh business owner sued the current one.
Normally, alienation cases boil down to illicit sex, but they don’t have to. Wake Forest law professor Suzanne Reynolds said one of the earliest cases in state history involved a husband accusing his in-laws of urging his wife to leave the marriage.
That kind of case gave rise to a nickname: “mother-in-lawsuits.”
Research indicates that up to 40 percent of heterosexual married men will have an affair; for married women, the figure is closer to 25 percent.
Cue Ashley Madison.
“Monogamy in my opinion is a failed experiment,” Biderman, a husband and the father of two, said in 2011.
Today, Avid Life operates a series of online “dating” sites based out of Toronto.
“CougarLife” tries to pair “sexy, successful older women and the vibrant, ambitious, younger men who want to date them.”
“Established Men” caters to older, financially successful clients and “sexy sugar babies with a taste for the finer things in life.”
There’s a site for gay men and also one for swingers.
But of the six social portals, Ashley Madison is clearly Biderman’s sugar baby.
Today, the infidelity site has 23 million members in 35 countries, said Paul Keable, Avid Life’s vice president of communication.
Keable declined this week to share any financial information. However, according to a 2011 profile in Bloomberg Businessweek, Avid Life predicted $60 million in revenue that year with $20 million in profits. Membership in Ashley Madison has since tripled, according to company figures, as has the number of countries in which the site claims to operate.
While its 19th century authors could not have envisioned a business dedicated to cheating, North Carolina’s alienation of affection law continues to survive efforts by the family court judges and lawyers to “rein it in,” said Reynolds, who specializes in family law at Wake Forest.
Because so many affairs begin at work, the North Carolina legislature in 2009 cordoned off employers from being sued. The law now requires that alienation claims be filed only against “a natural person.”
That would seem to set up the legal irony of a state law designed to punish infidelity protecting a company that profits from the very act.
Johnson begs to differ. He said because the affair that broke up the Schindlers’ marriage began in 2007, the old law applies.
That, Johnson said, makes Ashley Madison a legal – and deserving – target.
“That agency is pretty vile in my opinion,” he said. “I can’t really see a whole lot of positives that they create for the world, other than to make money.
“Hopefully, we’ll find a way to punish them.”