When a marriage ends due to adultery, it can be a very painful experience. If you have decided to get a divorce due to adultery in your marriage, you likely have questions about how it impacts the legal process, including the divorce, alimony, and property distribution.
This article explains the basics of adultery and divorce in North Carolina. If you still have legal questions after reading this article, you should contact an experienced family law attorney for advice and to protect your rights during the divorce process.
There are only two grounds for divorce in North Carolina - incurable insanity and separation for a period of one year. For a divorce based on incurable insanity you and your spouse must have lived separate and apart for three years due to the incurable insanity of one spouse.
The divorce based on a one year separation is the most common type of divorce in North Carolina. For this type of divorce, either spouse may ask the court for a divorce after the couple has lived separate and apart for one year. So long as the parties lived separate and apart for the full year, and did not resume their marriage during that year, the divorce will be granted.
Accordingly, adultery by husband, wife, or both may lead to divorce, but it cannot be a ground for filing for divorce. North Carolina does, however, allow for a husband or wife to file a civil lawsuit against the spouse’s lover. These cases are brought outside the divorce court in the regular civil court system. The lawsuits are called an action for “alienation of affection” or for “criminal conversation.”
North Carolina criminal law defines adultery as when any man and woman, not being married to each other “lewdly and lasciviously associate, bed and cohabit together.” Under North Carolina criminal law, adultery is a misdemeanor.
North Carolina family law, particularly the law on alimony, uses the term “marital misconduct” to include adultery. The alimony law goes even further to include other types of “illicit sexual behavior,” including oral sex between a spouse and someone other than a spouse.
Alimony is payment for the support and maintenance of a spouse. It can be paid in a lump sum (all at once) or in ongoing payments for a period of time. It can be awarded by the court as a part of a divorce case, or a spouse can file a lawsuit for alimony separately from the divorce case.
In North Carolina, a spouse is entitled to alimony if he or she is financially dependent on the other spouse, and if the court finds that awarding alimony would be equitable (fair) after reviewing many factors.
The factors the court will consider in an alimony case are:
A spouse may also file for “postseparation support.” This is spousal support paid to a dependent spouse by a paying spouse after separations and sometimes during the course of the divorce proceeding. It is payable to the supported spouse until the the end date of payments specified in the postseparation support order, or until an order is entered awarding or denying alimony, whichever comes first.
For more information on alimony in North Carolina, click here.
Although adultery is not a ground for divorce, the court will consider this type of marital misconduct when awarding alimony. If the court finds that the paying spouse committed adultery, the court must award the supported spouse alimony.
However, if the court finds that the supported spouse or both spouses committed adultery, the court will use its discretion to award or deny alimony. It is also important to note that the court will not consider any marital misconduct if the acts by one spouse are condoned by the other. This means if one spouse knows about the adultery, and forgives the cheating spouse, the adultery will not be considered in an alimony case.
Marital misconduct may also be a factor in a postseparation support award. If either spouse introduces evidence of marital misconduct by the other spouse, the court is required to take that into account. However, the court is not required to award these types of support payments even if there is evidence of marital misconduct.
For more information on family law topics in North Carolina, click here.