When is an Alimony Claim Barred?

In Separation & Divorce by Carly Baker

Alimony. One simple word can ignite passions rarely seen in other areas of the law. This can be attributed to the fact that North Carolina is an “absolute divorce” state, which does not consider the element of fault when legally severing a marriage. As a result, a couple’s opportunity to have their “day in court” and establish who misbehaved during the marriage generally comes in the context of a lawsuit for alimony.

Like any great drama, alimony can encompass issues like infidelity, marital misconduct, a couple’s standard of living, and money. However, before a court can hear any of this evidence, parties will provide evidence as to the threshold questions of whether the spouse requesting alimony is entitled to it, or whether that spouse is barred from receiving alimony payments.

The Question of Illicit Sexual Behavior

In North Carolina, the initial step is to determine which spouse is the “dependent” spouse, or the party who is actually substantially dependent on the other spouse’s income. In determining whether a dependent can receive alimony, one of the critical questions is whether either or both spouses have engaged in “illicit sexual behavior.”

Under the statute, Illicit sexual behavior is defined to include “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts” “voluntarily engaged in by a spouse with someone other than the other spouse”. Why is this important when it comes to alimony? Because the answer can have the following results:

  1. If the supporting spouse is shown to have engaged in illicit sexual behavior during the marriage and prior to the couple’s separation date, then the dependent spouse is entitled to a judgment awarding alimony.
  2. If the dependent spouse has condoned the other spouse’s illicit sexual behavior, then that behavior is not to be considered by the court.
  3. If both spouses engaged in illicit sexual behavior during the marriage, then the court is not obligated to award the dependent spouse alimony; however, the court has the discretion to award alimony after considering “all the circumstances”.
  4. Significantly, if the dependent spouse participated in an act of illicit sexual behavior between the date of marriage and the date of separation, then that spouse is barred from receiving alimony. Specifically, the court “shall not award alimony”, which means the court lacks the discretion to award alimony.

New Direction Family Law

Whether you have been asked to provide spousal support or you are seeking it, New Direction Family Law can help. For years, we have represented men and women on both sides of this high-stakes issue. We have the knowledge and experience to fight effectively for our clients’ rights. Let us assist you. Our attorneys serve Wake, Johnston, Durham, and surrounding counties. If you need help, contact New Direction Family Law at (919) 719-3470 to schedule a consultation or visit our website.

Carly G. Baker
New Direction Family Law

New Direction Family Law
(919) 719-3470