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 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 an absolute 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 one spouse's incurable insanity. (N.C. Gen. Stat. § 50-5.1.)
Although adultery is not a ground for an absolute divorce, it is a ground for legal separation, called "divorce from bed and board" in North Carolina. If your spouse has cheated, and you'd like to legally separate from your spouse without ending your marriage, you can request a divorce from bed and board, using adultery as the grounds for your request. (N.C. Gen. Stat. § 50-7.)
In North Carolina, the most common ground for divorce is based on a separation for at least one year. So long as the couple lived separate and apart for the full year and did not resume their marriage (or cohabitate) during that year, the court will grant the divorce. You must also be a resident in North Carolina for at least six months before filing for divorce for the court to accept your case. (N.C. Gen. Stat. § 50-6.) While adultery by husband, wife, or both may destroy a marriage, but you can't use it as a ground for your divorce in North Carolina.
North Carolina is one of only a few states that permit a spouse to file a civil lawsuit against the spouse's lover or anyone who interfered with the marriage. Spouses need to file this lawsuit outside the divorce court in the regular civil court system. These lawsuits fall under two categories: "alienation of affection" and "criminal conversation."
Alimony is payment for the support and maintenance of a spouse. The court can order a spouse to pay in a lump sum (all at once) or ongoing payments for a period of time. A judge can award alimony as a part of a divorce case, or a spouse can file a lawsuit for alimony separately from the divorce case.
To qualify for alimony in North Carolina, you must prove to the court that you are financially dependent on your spouse. Additionally, the court must evaluate several factors to determine if awarding alimony would be equitable to both spouses.
The factors the court will consider in an alimony case are:
A spouse may also file for "postseparation support,"—which is money paid to a dependent spouse by a paying spouse after separation and sometimes during the divorce proceeding. Support will continue until the end date of the payments in the post-separation order or until the court enters a new order 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 one spouse's acts are condoned by the other. If one spouse knows about the adultery and forgives the cheating spouse, the judge will not consider adultery in the alimony case. (N.C. Gen. Stat. § 50-16.3A (a).)
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 law requires the court to consider it. However, if there is any evidence of marital misconduct, the law doesn't require the judge to award any postseparation support. (N.C. Gen. Stat. § 50-16.2A.)
For more information on family law topics in North Carolina, click here.