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The Role of Marital Misconduct in North Carolina Divorce Cases

Divorces don’t happen for no reason. Sometimes spouses simply grow apart, but other times one spouse commits an act – like cheating – that causes the breakdown of the marriage.

Marital misconduct can have an impact on how a North Carolina divorce is settled or decided by a judge, but the impact is generally more limited than most people think. Keep reading to learn how marital misconduct might affect your divorce case, whether your spouse committed marital misconduct or whether you’ve been accused of marital misconduct yourself.

What Is Marital Misconduct?

A couple at odds sitting with folded arms. In the foreground lies paperwork and wedding rings

The North Carolina law on alimony specifically defines behavior that is considered marital misconduct. The definition includes any of the following acts that occur during the marriage and before or on the date of separation:

  • Illicit sexual behavior (in other words, cheating and affairs) that occurred before or on the date the spouses separated
  • Committing a criminal act that causes involuntary separation of the spouses (usually by going to jail or prison)
  • Abandonment
  • Kicking the other spouse out of the marital home without a reasonable justification (known as malicious turning out-of-doors)
  • Cruel or barbarous treatment that endangers the other spouse’s life
  • Indignities that made the other spouse’s intolerable and their life burdensome
  • Reckless spending of the income of either party, or the destruction, waste, or hiding of assets
  • Excessive use of alcohol or drugs that made the other spouse’s condition intolerable and their life burdensome
  • Willful failure to provide necessary subsistence (such as money, food, and shelter) according to one’s means and condition, which rendered the other spouse’s condition intolerable and their life burdensome



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How Do North Carolina Courts Consider Marital Misconduct?

A couple in bed while the wife is sleeping and the husband is on his phone

North Carolina is a no-fault divorce state, which means that either spouse can seek a divorce for any reason without proving marital misconduct. However, the presence of marital misconduct before separation can affect the legal matters related to divorce, such as alimony (also called spousal support) and child custody.

One common myth about divorce cases is that if a spouse can prove infidelity or other marital misconduct, that spouse will “win” their case and the court will give them full custody of the children, long-term alimony, the house, the car, etc. However, this is not necessarily the case.

Does marital misconduct affect alimony?

Marital misconduct can affect a judge’s decision determining alimony or postseparation support, which is like temporary alimony.

If the supporting spouse (the spouse who would pay alimony due to greater earning capacity or post-divorce personal wealth) cheated and the dependent spouse (the spouse who would receive support) can prove it, then by the law the court must award some amount of alimony to the dependent spouse.

Keep in mind that if the dependent spouse condoned or forgave cheating or an affair, then the court won’t consider that instance of marital misconduct relevant anymore.

So, for example, if your spouse confessed to cheating in the past, but you “condoned” the behavior by continuing to live together, you can’t then point to that instance of cheating as a reason why you should get alimony. However, if your spouse cheated again later, and this time you refused to forgive them and separated, then that later instance of cheating could provide grounds for you to receive alimony.

Other types of marital misconduct can also affect the court’s alimony considerations. Judges usually weigh these instances on a case-by-case basis and reach a decision based on various factors, including how extreme the misconduct was and for how long it went on. However, in the end, alimony is mainly a decision based on the financial status of the parties.

Does marital misconduct affect child custody and child support?

It’s less common for marital misconduct to affect child custody, but marital misconduct could make a difference in these matters. In general, marital misconduct will only affect the court’s decision if the misconduct had a negative effect on your child’s well-being.

So, for example, if your spouse had an affair, but your child never found out about it and the affair never significantly affected the child’s environment at home, that misconduct would probably not affect child custody.

However, if your spouse engaged in harmful behavior like drug or alcohol abuse in front of your child, or otherwise caused physical or psychological harm or endangerment to the child, then that marital misconduct could affect the court’s decision regarding child custody.

Any marital misconduct that is proven will rarely affect child support directly. It could affect the custody arrangement, which then could affect the amount of child support. However, child support itself should be decided based on the finances of the parties.

Does marital misconduct affect property division?

North Carolina law generally does not regard marital misconduct as relevant to the property division process, known as equitable distribution. It can be very upsetting to find out that a spouse’s harmful behavior won’t play a role in the property division. However, North Carolina law views the property division from the standpoint of a business partnership, so the focus for the judge is on the value and distribution of the property items.

RELATED: 6 Things You Need to Know About Divorce in North Carolina

What Is a Divorce From Bed and Board?

A divorce based on marital misconduct is also called a divorce from bed and board. This term creates a lot of confusion, because if you successfully ask the court for a divorce from bed and board, you’ll still be married to your spouse afterward. You’ll need to get what’s known as an absolute divorce to terminate the marriage.

So, why does this type of so-called “divorce” exist if it doesn’t end a marriage? And why would anyone want one?

A divorce from bed and board is really a type of legal separation that removes the spouses’ obligations to live together. It is a hold-over from when fault was required for divorce.

Even though it won’t terminate a marriage, getting a divorce from bed and board can help strengthen your case later. Since marital misconduct can help with a claim for spousal support and maybe custody, proving it as part of a claim for divorce from bed and board might help. However, this claim is usually not worth the time and money that is incurred in pursuing the claim.

What Kinds of Evidence Can Prove Marital Misconduct?

The types of evidence that might be useful to prove marital misconduct depend on the type of misconduct. Some types of marital misconduct can be easy to prove while other types can be very difficult.

For example, if your spouse was convicted of a crime that caused involuntary separation, the resulting criminal record and the record of the legal proceedings should provide all the evidence you need.

On the other hand, proving marital misconduct such as cheating, cruel treatment, and excessive alcohol or drug use might be a lot more difficult, especially if your spouse worked to conceal the misconduct from you or from others outside the marriage.

Whatever type of marital misconduct has occurred, it’s important to contact an attorney right away if you want to seek a divorce based on marital misconduct or you’re involved in a divorce case where marital misconduct is a factor.

Spouses who have committed marital misconduct often tend to destroy evidence such as emails, text messages, and photographs once a divorce begins or looks likely. However, an experienced attorney should have strategies and tools at their disposal to help preserve existing evidence and possibly even recover evidence that a spouse has attempted to destroy.

RELATED: Who Gets Alimony in North Carolina and Why?

How Can an Attorney Help Me in My Divorce Case Involving Marital Misconduct?

A husband having a meeting with a divorce attorney

If you’re involved in a divorce process or seeking a divorce and your spouse committed marital misconduct, it’s extremely important to contact an experienced divorce attorney so they can help preserve evidence and build your case.

But what if you were the one accused of marital misconduct? Sadly, it’s not rare for one spouse to falsely or unfairly accuse the other spouse of marital misconduct during divorce proceedings.

Sometimes, a spouse levels a false accusation because they mistakenly believe it’s true. Other times, a spouse might make a false accusation deliberately because they believe it will help their legal position during a divorce. And in other cases, sometimes one spouse will accuse the other of marital misconduct that they condoned or also engaged in (for example, if both spouses were cheating or having affairs).

No matter what the nature of marital misconduct was or who is being accused, you should always seek advice from an experienced divorce lawyer. Marital misconduct can have an effect on divorce-related legal proceedings, but the issues surrounding marital misconduct can be complicated and difficult to prove.

Working with a lawyer who understands the issues and the type of evidence needed to prove marital misconduct or defend against an accusation of marital misconduct can give you peace of mind and help your odds of getting the outcome you’re hoping for in the divorce process.

Have Questions About Marital Misconduct in Your North Carolina Divorce? Call Myers Law Firm Today

If you have questions about marital misconduct or any other matter related to a divorce case, reach out to our experienced divorce lawyers at Myers Law Firm. We’ll meet with you to learn about your situation and offer compassionate, easy-to-understand advice about what to do next.

To schedule your consultation, please call 888-376-2889 or complete our brief online contact form today.

North Carolina General Statutes, Definitions, § Section 50-16.1A. https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-16.1a.html


The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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