How Will Adultery Affect My Divorce Case?

What we generally think of as “adultery,” is referred to by North Carolina Gen. Stat. 50-16.1A(3)(a) as “illicit sexual behavior” which is defined as “sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse” that occurs during the marriage and prior to or on the date of separation.

Adultery is one of the common reasons a marriage ends in divorce. However, adultery will usually only affect your divorce case if there are claims asserted for post-separation support and/or alimony.

In North Carolina, postseparation support refers to temporary alimony that may be awarded to a dependent spouse while an adjudication is pending as to whether that spouse is entitled to a longer-term or permanent alimony. In determining whether to award post-separation support in any amount, the law requires that the trial court consider any marital misconduct by the dependent spouse. If the dependent spouse has engaged in adultery or other marital misconduct, then the court is also required to consider any marital misconduct by the supporting spouse in determining the postseparation support award. Thus, adultery may affect whether or not a dependent spouse receives postseparation support, as well as the amount of the award, but it is not necessarily a bar to a dependent spouse receiving such an award.

In determining the amount, duration, and manner of payment of alimony, the court is required to consider all relevant factors, including, the marital misconduct of either of the spouses. Adultery may be a bar to a dependent spouse receiving alimony. On the other hand, if the supporting spouse commits adultery and the other spouse is found to be a dependent spouse, then the law states that the court must award alimony to the dependent spouse.

It is important to remember that conduct after separation may become relevant to your legal proceedings to the extent that it may be used to corroborate your conduct during the marriage.

Much to the disappointment of many clients, adultery is not a factor that the court considers in determining whether one party should be entitled to a greater share of the distribution of the marital property.

This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.

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