Marital Misconduct in North Carolina

There is a common misconception among separated individuals when it comes to marital infidelity.  Many people believe that if they can prove the other spouse had an affair, they can take all the property, get custody of the children, get tons of child support, and get a boatload of alimony forever.  However, this simply is not the case.  Under NCGS 50-16.1A, marital misconduct is defined as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14‑27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse.”  So, if you or your spouse had an affair, there has been marital misconduct.

In North Carolina, marital misconduct is irrelevant as to issues of child custody, child support, and equitable distribution (i.e., property division).  When does marital misconduct matter?  Spousal support (i.e., post-separation support and alimony).  If you are considered the supporting spouse and your spouse cheated on you before you separated, then he or she is not entitled to alimony.  However, if you are the supporting spouse and you cheated, then the court by statute must order you to pay alimony.  If both spouses committed adultery, the court will look to statutory factors to determine whether an award of alimony is appropriate.  If one spouse forgave (i.e., condoned) the affair, the court will not consider any evidence of the affair.  Either spouse may request a jury trial on the issue of marital misconduct.

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