How a Criminal History May Play Into Your Divorce

In Separation & Divorce by Elizabeth Stephenson

North Carolina is a no-fault state when it comes to divorce. This means that for a spouse to obtain an “absolute divorce” from another spouse, the spouse does not need to prove the other spouse engaged in any sort of misconduct that resulted in the divorce. Instead, courts may grant a divorce upon a finding that the couple has been separated for a full year.

Nevertheless, this does not mean that a spouse’s actions during a marriage have no bearing on the issues relating to a divorce. In fact, many people make mistakes and have some form of criminal history, which makes it important to understand the ways that this history may play into a divorce.

Criminal Activity Can Bear on Alimony Judgments

One of the significant aspects that a spouse’s criminal acts may affect is alimony, or spousal support. North Carolina General Statutes provide courts with broad discretion in what they can consider when awarding alimony, including evidence of marital misconduct. Marital misconduct is relatively broad in its scope and may include a criminal act that occurred during the marriage that caused the couple’s separation. This means that if a spouse engages in criminal activity during marriage, which ends the relationship, then the dependent spouse can be awarded a relatively higher alimony judgment.

Notably, this does not mean that ANY criminal act in a person’s past can be used against them. First, the statutory definition of marital misconduct does not encompass criminal history that pre-dates a marriage. Second, even if a spouse commits a criminal act during a marriage, this does not necessarily precipitate the end of the relationship. Therefore, courts will carefully weigh the evidence of the criminal activity to determine the existence of a link between the activity and the separation.

Criminal Activity and Child Custody

In addition to alimony, criminal activity may also play a role when it comes to child custody. In making a custody and visitation order, courts are tasked with considering the child’s best interest. There is no fixed definition of best interest, but a court will absolutely consider the following types of criminal acts when reaching its determinations:

  • Whether a parent physically abused or sexually assaulted their own child;
  • Whether a parent abused, sexually abused, or murdered another child;
  • Whether a parent committed a violent crime against the child’s other parent; or
  • Whether a parent has committed any type of offense that poses an implicit threat to the child.

Not all criminal convictions are created equal, so court will put different weights on a criminal history based on the severity of the offenses, the age of the offenses, whether there was a pattern of criminal behavior, how much time the parent was incarcerated as a result, efforts to rehabilitate and change, as well as the likelihood that criminal conduct will recur in the future.

New Direction Family Law

Not all criminal histories are created equal. At New Direction Family Law, we understand that everyone makes mistakes in their lives. We also believe that everyone deserves respectful, high quality legal representation. If you want legal advice on a divorce or custody related issue, we will listen to you, answer your questions, and help you weigh your options. We represent men and women in family law disputes and pride ourselves in our hard-working, comprehensive approach. We serve clients in Wake, Johnston, Durham, and surrounding counties. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation, or contact us at our website.