Adultery and Divorce: How Adultery Impacts Divorce in North Carolina

man w/ cell phone committing adultery divorce

Infidelity, Adultery, and Impact on Divorce

Adultery can have a significant impact on divorce. Though North Carolina is a no-fault state when it comes to divorce, infidelity or adultery can have a significant impact on other claims that stem from a divorce such as alimony, and in limited circumstances, child custody and property division. Adultery can also be grounds for a divorce from bed and board in North Carolina. If you suspect (or have proof of) your spouse’s adultery or if you are being accused of adultery by your spouse in the course of your divorce, you should contact our office before proceeding further. Don’t discuss the affair or do anything before you contact an attorney. We can help you obtain evidence to prove your claim or protect your claim from deletion of evidence. If you have had an affair we can help you strategize to avoid losing alimony.

Adultery and Alimony

The Adultery statute in NC outlines the situations in which the court awards alimony. First, the party moving for alimony must establish that they are the dependent spouse and that the other spouse is the supporting spouse. Then, the court must find that an award of alimony is equitable.

Even if a court reaches these findings, adultery on the part of the dependent spouse is a bar to alimony. If the court finds that the dependent spouse has participated in an act of illicit sexual behavior such as sexual intercourse or other sexual acts with a person other than their spouse during the marriage and prior to or on the date of separation, the court will not award alimony. An adulterous dependent spouse has no rights to alimony under North Carolina Law.

Adultery is a Bar to Alimony in NC

If the court finds that the supporting spouse has participated in an act of illicit sexual behavior such as sexual intercourse or other sexual acts with a person other than their spouse during the marriage and prior to or on the date of separation, the court shall order that alimony be paid to the dependent spouse – often in a greater amount or for a longer duration than would have been awarded absent adultery. If the court finds that

If the court finds that both spouses have participated in an act finds that the dependent spouse has participated in an act of illicit sexual behavior such as sexual intercourse or other sexual acts with a person other than their spouse during the marriage and prior to or on the date of separation, the award or denial of alimony is in the discretion of the court after considering all other circumstances. If the illicit sexual acts of either spouse were condoned by the other, the acts shall not be considered by the court in an alimony claim.

While a person is generally free to pursue relationships with people other than their spouse after the date of separation, it should be carefully considered if adultery is an issue in your divorce. The court may use your continued relationship with this person after the date of separation as corroborating evidence supporting the other spouse’s claim of adultery during the marriage.

Adultery and Child Custody

It is widely known that child custody is determined by what is in the best interest of the child. Even though the adultery alone may not harm the child, it can bolster the opposing spouse’s argument of the adulterous parent’s lack of responsibility, stability, and fitness as a parent. While rare, a judge, in their considerable discretion, may determine that an extramarital affair negatively impacts the best interest of the child and find it is inappropriate for the child to reside with the adulterous parent.

Adultery and Property Distribution

In almost all cases, adultery has absolutely no bearing on a judge’s decision regarding the division of marital property. The only exception being if your or your spouse’s affair affected the finances of the marriage. For example, a judge will likely take into consideration if thousands of dollars of marital assets were spent (or significant debt accumulated) on expensive hotel rooms, gifts, or vacations for the spouse’s paramour.

Divorce from Bed and Board

Despite a name that suggests otherwise, a divorce from bed and board action does not actually result in a divorce of the married couple. Divorce from bed and board is, rather, a court-ordered separation of the couple. This is a fault-based action and is not typically required in the process of a divorce. Fault-based means that the spouse seeking the divorce from bed and board must show that they have been injured by the other spouse according to one of the six grounds in North Carolina General Statute § 50.7 – one these grounds being adultery. This is important because a divorce from bed can be used to establish some of the rights of the spouses such as who stays in the marital home if both parties are refusing to leave or to support a claim for alimony, post-separation support, or child custody.

Adultery and Civil Law Suits

North Carolina is one of the few states where a lawsuit can be filed as a result of adultery. While the injured spouse cannot sue the adulterous spouse, the law allows the injured spouse to bring a civil action against the third party with whom the adulterous spouse cheated. The two lawsuits that can be pursued by the injured spouse are Alienation of Affection and Criminal Conversation. Though the suits differ in their technical details, both are intended to show the role of the third party in breaking up the marriage so that the injured spouse can claim monetary damages for emotional turmoil caused, financial damages suffered, and loss of companionship and marriage.

Alienation of Affection

For alienation of affection the innocent spouse must prove:

  1. The spouses shared a happy marriage and a genuine love and affection existed between them.
  2. That love and affection were alienated or destroyed.
  3. The wrongful and malicious acts of the third-party were the direct cause of the alienation of the affection.

An innocent spouse does not have to prove that their marriage was perfect or that the third-party set out with the intention of destroying the marriage, just that there was some love shared between the spouses and the third-party actively engaged in activities that could foreseeably have a negative impact on the marriage. Further, the innocent spouse does not have to provide proof of a sexual relationship between the other spouse and a third-party, but must only prove the inclination and opportunity of the third party to alienate the relationship.

Criminal Conversation

For criminal conversation the innocent spouse must prove:

  1. A lawful marriage between the spouses.
  2. Sexual encounters between the spouse and the third-party in North Carolina.

North Carolina General Statute § 52-13(b) directs that the statute of limitations for either of these claims is three years. This means that neither suit can be filed more than three years after the last act of the adulterous spouse.

Adultery in Criminal Court

You may be wondering if adultery is illegal or whether adultery is a crime. While rarely prosecuted, as of 2018 adultery is illegal in many states. Those states include Arizona, Florida, Kansas, Illinois, Oklahoma, Idaho, Michigan, Wisconsin, Minnesota, Utah, New York, Mississippi, Georgia, North Carolina, South Carolina, and Maryland. Adultery is a misdemeanor in Alabama, South Carolina, New York, and Utah. It is a felony in Wisconsin and Michigan. Adultery remains a crime in the US Military.