Defending Against False Marital Misconduct Claims

In Separation & Divorce by Sarah Hink

To state things mildly, separation and divorce can be an intense and bitter experience. Whatever sequence of events or acts that led to the separation, some spouses are absolutely set on taking the other spouse down and having their “day in court.” Unfortunately, this sometimes leads to spouses getting carried away and making false marital misconduct claims against the other spouse. So the question of the day is: should you let a false claim stand or is there a way to defend yourself?

What is Marital Misconduct?

Marital misconduct is defined in the North Carolina as improper acts that occur before or on the date of a married couple’s separation including: sexual infidelity; a spouse’s criminal act; abandonment; “malicious turning out of doors;” cruel treatment that endangered the other spouse’s life; indignities that made the other spouse’s life intolerable; reckless spending or wasting marital assets; excessive drug or alcohol use; or willful failure to provide for the other spouse.

How Does Marital Misconduct Figure into a Divorce?

North Carolina is an absolute divorce state. An absolute divorce is a no-fault divorce that either spouse can request after they have been separated for a full year. In other words, all that a spouse needs to show to obtain an absolute divorce is that the couple has lived separate and apart for a full year prior to filing their petition. So unlike what you see on television, there isn’t a big dramatic trial in which everyone’s dirty laundry is aired when it comes to obtaining a divorce in this state.

However, alimony—which is a separate legal issue from an absolute divorce—is different. Alimony actually considers a spouse’s fault in a couple of different ways. First, if a spouse has engaged in an act of illicit sexual behavior, the wronged dependent spouse is entitled to alimony. Second, when considering the length and amount of alimony to award, the court is allowed to consider marital misconduct.

Defend Yourself Against False Marital Misconduct Claims

There are two basic motives that underlie a spouse making a false claim of marital misconduct. The first is that they are angry and feel like seeking vengeance by dragging the other spouse’s name through the mud. The other option is that there is a financial incentive for claiming marital misconduct—namely the chance at a bigger, longer alimony award. However, there are ways that you can prepare to defend yourself.

  • If your spouse has accused you of having an affair with a specific person, then make sure to avoid any appearance of impropriety with that person during your yearlong separation. Not only does this look bad and confirm your spouse’s suspicions, but a court is explicitly allowed to consider “incidents of post-date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation”.
  • If the allegations are untrue, then don’t make the problem worse. Don’t get into a war of words by email or text. Further, limit your own social media activity as anything you post—no matter how innocent—can potentially be used against you.
  • Keep documentation that supports you. If you have texts, voicemails, social media posts, or friends who can corroborate your side of the story, save it all. This can only help you and your attorney prepare your defense. This includes any documentation that supports that your spouse engaged in marital misconduct, including infidelity.
  • Talk to your attorney. Make sure your attorney is aware of all allegations of marital misconduct that you are aware of. Hiding things from your attorney will not help you in a lawsuit. You need to give your attorney a full view of your case so that a proper defense can be mounted on your behalf. Allowing your attorney to be surprised by information you already knew will damage your chances of success.

Contact New Direction Family Law

Allegations of marital misconduct are a big deal, and we take such allegations very seriously. At New Direction Family Law, we represent both men and women experiencing divorces and understand that there are two sides to every story. We can help provide thorough, strong representation to our clients and will make sure that the court gets to see the whole picture. Call us today. We serve clients throughout Wake, Johnston, Durham and surrounding counties. Contact our office at (919) 719-3470 to schedule a consultation or visit us online through our website.

Sarah J. Hink
New Direction Family Law

New Direction Family Law
(919) 719-3470