Adultery and Divorce

Divorce can be a confusing and emotional time, especially if your spouse has committed marital misconduct. If you are thinking about filing, or have already filed for divorce, you may have questions about how marital misconduct, specifically adultery, may affect your divorce and any potential alimony owed to you. To answer any questions you may have, it is best to enlist the help of an experienced family law attorney to make sure your rights are protected.

Marital misconduct is often one of the main reasons a marriage has failed, and why many couples seek divorce. Marital misconduct can be any one or more of the below:

• illicit sexual behavior – sexual acts or intercourse with someone other than your spouse
• separation due to one spouse committing a crime
• abandonment
• throwing your spouse out of the house
• cruel treatment that endangers the life of your spouse
• creating intolerable conditions for your spouse
• concealing assets
• recklessly spending assets
• abusing drugs or alcohol that creates intolerable living conditions for your spouse

For a more detailed list of what considered marital misconduct in North Carolina, please reference NCGS 50-16.1A.

Alimony: A court can consider adultery when determining alimony. If you are considered the supporting spouse and you committed adultery, then the court must award alimony to the dependent spouse. However, if you are the supporting spouse, and your dependent spouse committed adultery, then the dependent spouse is not entitled to any alimony.

Property Division: North Carolina is an equitable distribution state, but this does not necessarily mean equal distribution. An equal split may be a starting point when dividing assets and property, but there are several factors such as the duration of marriage, the income of each spouse and child custody. Marital misconduct, however, does not mean that the non-cheating spouse gets all of the marital property. However, a court may consider the marital misconduct in property division if it can be shown that

Child Custody: While adultery does not automatically revoke the cheating spouse of their parental rights, a judge can take this into consideration when determining whether or not someone is a fit parent.

Child Support: Adultery does not generally affect child support. If you have questions regarding the amount of child support you might be obligated to pay, please contact one of our attorneys or refer to our Child Support Calculator. How Do You Prove Adultery in a Court of Law?

In order to prove that your spouse has committed adultery, you must show two things:

• There was an opportunity for your spouse to be alone with the third-party sexual party
• There was an inclination to participate in illicit sexual behavior

Proving adultery in a court of law almost always relies on circumstantial evidence. What this means is that you do not have first-hand evidence that your spouse has engaged in illicit sexual behavior, but things such as text messages and credit card bills show circumstances that support the adultery allegations. Below is a list of potential evidence that can be used to support your claim of adultery:

• Witness testimony
• Credit card statements or receipts that show hotel charges, restaurant charges, flowers or jewelry purchased, etc.
• Emails
• Texts
• Social Media
• Your spouse’s cell phone can be called into evidence. This might show phone calls or photos that support the adultery allegations

While family law cases are usually determined by a judge (otherwise known as a bench trial), if there is an issue of alleged illicit sexual behavior, a jury may review the evidence to make a determination.

It is also important to know that if you have proof of adultery, you can bring separate claims against the third-party your spouse cheated with. These claims are known as Alienation of Affection and Criminal Conversation.

A possible defense to adultery, or other marital misconduct allegations, is that you condoned the behavior. In other words, you knew of the adultery and either remained in the marriage or forgave your spouse. If it is determined that you did condone the marital misconduct, a court will usually not factor said misconduct in determining alimony.

If you suspect your spouse has committed adultery, or some other form of marital misconduct, or you yourself have committed adultery, it is important to have an experienced family law attorney guide you through what can be a very stressful and emotional process. The dedicated family law attorneys at Arnold & Smith, PLLC have years of experience handling divorce and alimony cases in and around the Charlotte region. Contact us today so that we can help defend your rights through this difficult time.