Adultery and Divorce: How Adultery Impacts Divorce in North Carolina
North Carolina is a no-fault divorce state, but adultery can still matter, especially when it comes to alimony.
Where Adultery Actually Matters
Because North Carolina grants absolute divorce on a no-fault basis after one year of separation, proving adultery isn’t necessary to end the marriage. Its real impact shows up in alimony: if the dependent spouse committed adultery, they may be barred from receiving alimony, and if the supporting spouse committed adultery, the court must award alimony. Adultery can also factor into child custody in limited circumstances, if it directly affected the child’s welfare.
What It Takes to Prove Adultery
Evidence courts consider
- Direct evidence, though rare
- Circumstantial evidence showing opportunity and inclination
- Witness testimony, records, or admissions
Where it applies
- Alimony eligibility and amount
- Limited custody considerations
- Not required for the divorce itself
Infidelity, Adultery, and Impact on Divorce
Because every family law claim in North Carolina is a separate case with its own rules, the honest answer to “does adultery matter?” is: it depends which claim you are asking about. Adultery is decisive in one, relevant in another, and nearly irrelevant in the rest.
Adultery and Alimony
This is where adultery carries the most weight. Under G.S. 50-16.3A, “illicit sexual behavior” during the marriage and before the date of separation is marital misconduct, and the statute treats it differently from every other kind of misconduct.
Adultery is a bar to alimony in NC
If the dependent spouse, the one who would receive alimony, committed adultery before separation and the supporting spouse did not, the court must deny alimony. There is no discretion. If the supporting spouse committed adultery and the dependent spouse did not, the court must award alimony; the only question is how much and for how long. If both spouses were unfaithful, the judge weighs all the circumstances and may award or deny alimony. Adultery that begins after the date of separation is not marital misconduct for this purpose, although it can still be evidence that an affair started earlier. Condonation, meaning the innocent spouse knew of the adultery and resumed the marital relationship, can forgive it.
Adultery and Child Custody
An affair by itself is not a custody factor. Judges decide custody on the best interest of the child, and a parent’s private relationship with another adult usually has no bearing on parenting. It becomes relevant when the affair affected the children: a parent who left the children unattended to see a partner, exposed them to a new partner in a way that caused harm, or moved a partner with a criminal record into the home. In those cases the conduct, not the adultery, is what the court weighs.
Adultery and Property Distribution
Adultery is not a factor in equitable distribution. North Carolina divides marital property without regard to marital fault. The exception is money: if a spouse spent marital funds on the affair, on gifts, trips, hotels or an apartment, that spending can be treated as waste of marital assets and charged against the spending spouse’s share. Documenting the dollars matters more than documenting the relationship.
Adultery and Child Support
None. Child support is calculated under the North Carolina Child Support Guidelines from the parents’ incomes and the custody schedule. Neither parent’s conduct changes the number.
Adultery and the Divorce Itself
North Carolina grants absolute divorce after one year of separation with no showing of fault. You do not need to prove adultery to get divorced, and proving it does not speed up the divorce. Adultery can, however, support a claim for divorce from bed and board, a court-ordered separation that can remove a spouse from the home, and it is the basis for the separate tort claims described below.
Criminal Conversation and Alienation of Affection
North Carolina is one of a handful of states that still allow a spouse to sue the person who had the affair. Criminal conversation is a claim for sexual intercourse with a married person; adultery during the marriage and before separation is essentially all that must be proven. Alienation of affection requires proof that the marriage had genuine love and affection, that the affection was destroyed, and that the defendant’s wrongful conduct caused it. The claims are filed in superior court, must be brought within three years of the last act, and can produce substantial verdicts. They are also expensive to litigate and reopen every detail of the marriage, so they are pursued selectively. If you are considering one, do not wait; the three-year limit runs from the misconduct, not from the divorce.
Adultery and Divorce FAQs
Do I need to prove adultery to get divorced?
No. North Carolina’s no-fault divorce only requires one year of separation, regardless of the reason for the split.
Can adultery increase my alimony?
If your spouse was the supporting spouse and committed adultery, the law requires the court to award alimony to the dependent spouse.
What kind of evidence do I need?
Direct proof is rare, so courts often rely on circumstantial evidence showing both opportunity and inclination, along with any supporting testimony or documentation.
Can I get alimony if I cheated?
If you are the dependent spouse and you committed adultery before separation, and your spouse did not, the court must deny alimony. If your spouse also committed adultery, the judge has discretion. If your spouse knew about the affair and resumed the marriage afterward, condonation may remove the bar. Postseparation support is treated differently and may still be available.
Does adultery after separation count?
Not as marital misconduct. Only conduct before the date of separation bars or requires alimony. Post-separation conduct can be used as corroborating evidence that an affair began earlier, and living with a new partner after separation may still be raised on other issues, so discretion is wise.
How is adultery proven if there are no photographs?
Adultery is almost always proven by circumstantial evidence: opportunity and inclination. Hotel records, travel, phone and text logs, social media, credit card statements, testimony from friends or a private investigator, and the other spouse’s own admissions are typical. You do not need a confession or an eyewitness.
Can my spouse refuse to answer questions about the affair?
Yes. Adultery is still a crime on the books in North Carolina, so a spouse can invoke the Fifth Amendment and decline to answer in a deposition or at trial. In a civil case, however, the judge is allowed to draw an adverse inference from that refusal.
Is dating during separation adultery?
Legally, sexual relations with someone other than your spouse before the divorce is final is adultery, even after separation. It does not bar alimony because it occurred after the date of separation, but it can complicate the case, affect negotiations, and be used as evidence about when a relationship actually began.
Can I sue the person my spouse had an affair with?
Yes. North Carolina recognizes claims for alienation of affection and criminal conversation against the third party. The claims must be filed within three years of the last wrongful act and require the affair to have occurred before separation. They can result in significant damages but are costly to litigate.
Will adultery help me get the house or more property?
Not directly. Equitable distribution ignores marital fault. If marital money was spent on the affair, you can ask the court to charge that spending against your spouse’s share as waste of marital assets.
Related Reading
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Managing Partner and Co-Founder, McIlveen Family Law Firm. Angela is a Board Certified Specialist in Family Law, certified by the North Carolina State Bar Board of Legal Specialization, and an experienced family law trial attorney who represents clients across North Carolina. She personally reviewed this page for legal accuracy.