If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering whether the infidelity could affect your divorce. North Carolina doesn't allow you to file for divorce based on adultery, but it could affect
It's natural to want to punish a spouse who has cheated on you. North Carolina courts won't let you use the divorce process as punishment, but your spouse's cheating could impact your case.
Historically, if you wanted a divorce, you had to prove that your spouse was guilty of some kind of wrongdoing. And adultery was usually at the top of the list of misconduct that could be a "ground" (legal reason) for divorce.
Some states still allow you to get a divorce based on your spouse's adultery. But not in North Carolina, which is strictly a "no-fault" divorce state. To get a divorce in the state, you and your spouse must have lived separate and apart for at least one year, and one of you must have been a North Carolina resident for six months or more. (You could also get a divorce based on "incurable insanity," but that would require an even longer separation period.) (N.C. Gen. Stat. §§ 50-5.1, 50-6 (2022).)
Of course, adultery is one of the most common reasons that marriages end in divorce. And unless you and your spouse can work through the emotional repercussions of an extramarital affair (or you had an open marriage to start with), infidelity can certainly play a central role in leading to the permanent breakdown of your marriage. But it isn't a legal reason for divorce in North Carolina.
When judges are deciding whether to award alimony in a divorce, some states allow them to consider marital misconduct—including adultery—along with a number of other circumstances like the length of the marriage and the spouses' age and health.
North Carolina's alimony law goes even further. When a spouse has requested alimony (and the couple hasn't reach an agreement on that issue), the judge must first look into a claim that either spouse has committed adultery. That's because state law prohibits an alimony award to a spouse who has engaged in "illicit sexual behavior" (which includes adultery) while the couple was married but before they separated. And it requires the judge to grant alimony to the depend spouse if the other spouse was guilty of pre-separation adultery.
There are only two exceptions to this rule:
(N.C. Gen. Stat. §§ 50-16.1A(3), 50-16.3A(a) (2022).)
At first blush, North Carolina's position on adultery might seem like contradictory thinking: The state bars using adultery as a reason for divorce, but allows it as a do-or-die factor in alimony awards. Why not just allow it—or disallow it—for both?
There might be a method to the madness. As much as North Carolina imposes a penalty for adultery in alimony decisions, the legislature knows that divorces based on fault grounds usually lead to prolonged, contested divorces that take an emotional toll on the entire family, as well as an additional burden on the courts.
There's less risk of that result if fault is permitted for the more limited purpose of awarding alimony, because now the whole case isn't premised on wrongdoing. Still, the central role of adultery in alimony decisions means that anytime there's a request for alimony and a claim of adultery in a North Carolina divorce, there's likely to be a big legal fight about whether the adultery took place and whether the other spouse condoned it or was guilty of similar behavior.
Adultery might also affect judges' decisions on other issues in a North Carolina divorce—but not always, and not to the same extent as the role it plays with alimony.
Child support in North Carolina is calculated under the state's child support guidelines. The most significant factors are the parents' income, daycare expenses, the cost of medical insurance, and the children's living arrangements. Adultery generally won't have any effect on child support.
Decisions about child custody in North Carolina, as in all states, must be based on what would be in the children's best interests. (N.C. Gen. Stat. § 50-13.2) (2022).) This is accomplished by placing the child in an environment that best "encourages full development of the child's physical, mental, emotional, moral, and spiritual faculties." (In re the Custody of Peal, 290 S.E.2d 664 (N.C.Sup. Ct. 1982).)
As a practical matter, a parent's adultery is unlikely to affect a judge's decision about parenting time (visitation) or where the child will live most of the time. This is especially true in light of importance for children to have an ongoing relationship with both parents after their divorce. The mere fact that a married person has had an affair doesn't mean that person can't be a good parent.
That said, a judge could conceivably consider the circumstances around a parent's adultery if it endangers the child's well-being—for instance, if the parent's extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
North Carolina is an "equitable distribution" state. Usually, this means that judges will divide a divorcing couple's property in a way that's fair, given the particular circumstances. However, there's a bit of a wrinkle in North Carolina. The state's law actually calls for an equal division of a couple's property unless the judge finds that a 50-50 split would not be fair. (N.C. Gen. Stat. § 50-20(c) (2022).)
The law sets out a long list of factors for judges to consider when deciding how to divide the property. Marital misconduct—including adultery—isn't on the list, but judges may also consider "any other factor" that would be appropriate and just. This allows quite a bit of leeway.
So how might adultery fit in to the property decision? Let's say a cheating spouse used marital assets to pay for lavish gifts or expensive trips with their lovers. In this situation, the adultery hasn't just caused emotional harm to the innocent spouse. It's resulted in financial harm as well, and a judge may decide that spouse should be compensated by receiving more than half of the remaining assets.
North Carolina still has a law on the books that makes adultery a misdemeanor. (N.C. Gen. Stat. § 14-184 (2022). In 2006, however, the North Carolina Supreme Court decreed that the law is an unconstitutional violation of due process rights. (Hobbs v. Smith, No. 05 CVS 267.)
The court didn't go into much detail in its unpublished order, other than referring to Lawrence v. Texas, 539 U.S. 558 (2003). In that case, the U.S. Supreme Court held that a Texas statute, which criminalized private consensual sexual acts between men, violated liberty rights under the Due Process Clause.
If you've decided to end your marriage after learning that your spouse has had an extramarital affair, you should seriously consider the consequences of making the adultery part of your North Carolina divorce. Even though adultery can play an important role when a judge is deciding whether to award alimony, raising that issue will almost certainly lead to a legal battle that will increase the cost of divorce (think attorneys' fees), as well as make the entire process take longer and be more stressful.
If you can cooperate with your spouse enough to work out a divorce settlement agreement, you'll be able to get an uncontested divorce in North Carolina—which is always quicker, easier, and cheaper than a traditional contested divorce. And if you need help resolving your disagreements, you can try divorce mediation. With an agreement, you can probably get a DIY divorce, either on your own or by using an online divorce service.
But you should speak with a lawyer if you aren't able to work out a satisfactory agreement, and you believe that raising the issue of your spouse's infidelity will benefit you. Similarly, you should seek legal help if you're on the other end of the stick—if your spouse is making your extramarital affair an issue in the divorce. Either way, an experienced family law attorney can evaluate your case and explain how best to protect your interests.