Extramarital Affairs and Divorce

In Separation & Divorce by Elizabeth Stephenson

For many, marital infidelity is a deal breaker. This is rightfully so, as trust is an essential element to a life-long relationship. Whether it was a one-time occurrence or a lengthy affair, the damage and emotional harm is very real. If infidelity has played a role in your decision to separate and divorce, you should be aware of the ways in which this factors (and does not factor) into your divorce.

Matters Where Infidelity Is Not Considered

Contrary to what many people believe, affairs and cheating are not grounds for divorce in North Carolina. This is because our state is an absolute divorce state, meaning couples are able to seek a no-fault divorce solely on the basis that they have been living separate and apart for a full year. Once that year has passed, either spouse may file for divorce.

Regarding division of property, North Carolina is an “equitable division” state, in which the courts look to numerous statutory factors to decide on an equitable division of all marital property. Generally, infidelity is not a factor that can be considered by a court when dividing property. An exception to this is where a spouse has improperly taken marital property and gifted it to a girlfriend or boyfriend. In this case, the court may consider the value that was taken from the marital estate and give more property to the other spouse to compensate.

Infidelity is generally not considered in an award of custody as long as children were not exposed to inappropriate acts or improper persons endangering their welfare. Child support, in addition, is not affected by one spouse’s intermarital affair.

Infidelity Plays a Role in Alimony

The area of family law where infidelity is a major factor is alimony determinations. In alimony proceedings, there is a “supporting” spouse, who is being asked to pay spousal support, and a “dependent” spouse, who is asking for support. If the supporting spouse is shown to have engaged in “illicit sexual behavior” with another person between the date of marriage and the date of separation, then the court shall order that alimony be paid to a dependent spouse and may consider this when awarding a greater amount of alimony than the dependent spouse would have otherwise received.

If the dependent spouse engaged in any acts of illicit sexual behavior outside of marriage, then the court shall not award alimony in any sum. If both spouses were engaging in illicit sexual behavior, then it is in the discretion of the court to award or deny alimony after considering all the circumstances.

It is important to note that any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court. Condonation occurs with one spouse knowingly forgives the other’s marital wrong (adultery) by either words or conduct.

Civil Lawsuits

North Carolina is one of the few states to offer a civil cause of action to file a lawsuit against the person having an affair with your spouse. This includes “criminal conversation” and “alienation of affection” causes of action seeking civil damages. These lawsuits sometimes serve as leverage by one spouse against a cheating spouse.

New Direction Family Law

If you are the victim of a cheating spouse and are considering a divorce, contact New Direction Family Law. For years, our legal team has advocated for clients through separations, divorces, alimony, child custody, and child support disputes. You have legal rights and we want to fight for you. We strive to provide our clients effective, professional legal representation. Call New Direction Family Law today at (919) 719-3470 to schedule an appointment, or contact us at our website.