How Marital Misconduct Factors into a Divorce

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  2. How Marital Misconduct Factors into a Divorce
How Marital Misconduct Factors into a Divorce

North Carolina offers no-fault divorces, referred to as “absolute” divorces. To grant a divorce order, a court can solely consider whether a couple has been separated for an uninterrupted year and cannot consider why the marriage is ending. As a result, a major source of conflict is removed from the proceedings.

Nevertheless, evidence marital misconduct still plays a role when it comes to some other issues that come with divorce. Specifically, it plays a large role when it comes to spousal support.

Marital Misconduct, Defined

The North Carolina General Statutes defines marital misconduct as any of the following acts that occur during a marriage or by the date of a couple’s separation:

  1. Illicit sexual behavior—which is “acts of sexual or deviate sexual intercourse, deviate sexual acts”, criminal sexual acts, or the voluntary engagement of sex with someone other than the other spouse;
  2. Involuntary separation resulting from a criminal act of a spouse;
  3. Abandonment by a spouse;
  4. “Malicious turning out-of-doors of the other spouse”;
  5. “Cruel or barbarous treatment endangering the life of the other spouse”;
  6. “Indignities rendering the condition of the other spouse intolerable and life burdensome”;
  7. “Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets”;
  8. “Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome”;
  9. “Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome”.


Marital misconduct plays a critical role in spousal support and alimony proceedings. First, if a supporting spouse is shown to have engaged in adultery, then the dependent spouse is entitled to alimony under the law. In contrast, if a spouse seeking alimony is found to have engaged in adultery, then that spouse cannot receive alimony.

Courts have broad discretion when it comes to deciding the amount and duration of an alimony award. There is an explicit list of factors that a court is required to consider when deciding alimony. Notably, the very first factor listed in North Carolina’s alimony statute is “The marital misconduct of either of the spouses.” Therefore, not only is evidence of this misconduct relevant, it can play a big role in how much or how little a spouse must pay in alimony.

Child Custody

Evidence of marital misconduct can also play a role in limiting a parent’s visitation and access to their children. Courts are tasked with making custody decisions based on the best interest of children. While best interest is undefined, it is well settled that domestic violence, substance abuse, criminal acts, and sexual offenses all support inferences that a parent is unfit. This can mean limited supervised visitation, no visitation, or even support the termination of a parent’s rights.

Contact New Direction Family Law

If you want to know about how to end your marriage, you need to speak with a family lawyer. New Direction Family Law helps men and women resolve the issues surrounding a divorce, including separation agreements, property division, spousal support, child custody, and child support. With decades of combined legal experience, our attorneys can help you make informed decisions about your path forward. Let us serve you. Contact our team at (919) 719-3470 to schedule a consultation or visit us online through our website.

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