How Does Infidelity and Misconduct Factor Into a Divorce?

In Separation & Divorce by Elizabeth Stephenson

Infidelity and misconduct in a marriage are factors given much weight in some areas of North Carolina’s domestic laws. In fact, when it happens, the first instinct in the mind of many injured spouses is to seek a divorce. Unfortunately, North Carolina is an absolute divorce state and there is no “fault-based” ground for divorce. This means that if a spouse commits infidelity or some other act of marital misconduct, the other spouse cannot use this as a basis to file for divorce and sever the ties of marriage. Nevertheless, there are several ways in which infidelity and misconduct still play a role in several aspects of a separation and divorce.

Divorce from Bed and Board

A divorce from bed and board is not an actual divorce, but is effectively a court-ordered separation. The circumstances that lead a spouse to seek this relief are anything but amicable. An injured spouse make seek a divorce from bed and board if the other spouse has: (1) abandoned the family; (2) “maliciously” expelled the injured spouse from the marital home; (3) has subjected the injured spouse to “cruel or barbarous treatment”; (4) has made the injured spouse’s “condition intolerable and life burdensome”; (5) uses drugs or alcohol excessively; or (6) commits adultery.

The injured spouse is essentially seeking a court-ordered separation agreement, since the other spouse’s conduct is antithetical to any sort of good faith agreement. The relief that is most associated with a divorce from bed and board is an order allowing the injured spouse to live in the marital home.

Alimony Award

Infidelity and misconduct are not generally part of what a court may consider when equitably dividing marital property. However, marital misconduct is one of numerous factors that a court may consider when awarding the amount and duration of alimony payments. In addition to the acts that a court considers in a divorce from bed and board, marital misconduct includes “illicit sexual behavior”, a criminal act that caused the marriage to end, the conversion and waste of marital property, or a willful failure to support the injured spouse.

Alienation of Affection and Criminal Conversation

Often referred to as heart-balm torts, these third-party claims are indirect methods in which your spouse’s infidelity may play out in a courtroom. “Alienation of Affection” and “Criminal Conversation” are two types of civil proceedings that you can bring against a third party, such as a party’s paramour. For criminal conversation, it must be proven that you were in an intact marriage and that a third party has sexual intercourse with your spouse. Generally, for alienation of affection, you must prove that there was “genuine love and affection” which was destroyed by the malicious acts of the third party.

These legal causes of action can factor into a divorce in a few ways. If the third party is financially dependent on your spouse, the attorney’s fees and potential monetary damages from the lawsuit will ultimately hit your spouse’s bank account. Second, your spouse probably does not want a contentious, embarrassing lawsuit ruining that new relationship. The threat of these actions makes settlement of the divorce issues more likely.

Contact New Direction Family Law

If you are considering separating from your spouse, you should speak with an attorney. Separations and divorces are emotionally charged and legally complex, and it is important to find an attorney who can help you navigate your way through. With over two decades of combined legal experience, the attorneys at New Direction Family Law strive to provide comprehensive, personally tailored representation and to make sure to operate with your goals in mind. Call our team today at (919) 719-3470 to schedule an appointment, or contact us online at our website.