Marital Misconduct

Marital Misconduct
Statutes:	N.C.G.S. § 50-16.1A(3)
Description	Marital misconduct are improper acts done during the marriage, prior to the separation date.
Takeaway	Marital misconduct is primarily a factor in alimony.

Marital Misconduct is any of the eight improper acts defined by § 50-16.1A(3) as marital misconduct. Such acts must be done during the marriage, prior to the separation date to qualify as misconduct. Drug abuse, cheating, and committing crimes leading to jail time are all marital misconduct. Generally marital misconduct is primarily relevant to alimony, when applicable.

The Statute

These are the acts defined by § 50-16.1A(3) as marital misconduct:

1. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse;
2. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
3. Abandonment of the other spouse;
4. Malicious turning out-of-doors of the other spouse;
5. Cruel or barbarous treatment endangering the life of the other spouse;
6. Indignities rendering the condition of the other spouse intolerable and life burdensome;
7. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
8. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
9. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.

Cheating

To prove a spouse had sexual relations outside the marriage, the spouse making the accusation has the burden of showing "opportunity" and "inclination." Meaning, the spouse does not need graphic or "beyond a reasonable doubt" evidence. It merely must be proven the allegedly cheating spouse was in a situation where they would be inclined to have sex outside the marriage and had the opportunity to do so. However, if the spouses have sex together after the date of the misconduct, this is considered forgiveness and the marital misconduct claim is silenced.

Alimony

Marital misconduct by the spouse asking for alimony can result in that spouse not getting any alimony at all. Marital misconduct by the spouse paying alimony can result in a substantially larger alimony payment. If there is misconduct by both spouses, then it is up to the judge to determine how the misconduct effects alimony. However, at the interim alimony stage (called Postseparation Support) when the court is determining temporary support payments that take place while litigation proceeds, marital misconduct is only used to determine if the spouse qualifies for alimony and not whether the alimony payment should be larger. Generally, marital misconduct is primarily relevant to alimony.

Suing the Paramour

North Carolina is one of few states where you can sue the person that had sex with your spouse. These lawsuits are called "Alienation of Affection" and "Criminal Conversation" claims. These claims are often asked about but rarely seriously pursued due to the cause and effect the plaintiff has to prove. To win one of these claims, the plaintiff must show the person that slept with their spouse caused the loss of their spouse's affection as shown in this flow:

Cheater -> Caused -> Lost Affection = A Good Case

However, most of the time, the cheating spouse themselves convincingly testify the cause and affect is reversed

Lost Affection -> Caused -> Cheating = Not a Good Case

Contact an Attorney

This wiki is provided by North Carolina divorce lawyer David King and his firm King @ Law. You can learn more about King @ Law at www.kinglawnc.com. If you are looking to hire an attorney, have questions, or would like to contribute to this wiki, you can contact attorney King using any of the following methods:

• Schedule a Consultation
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• Email: david@kinglawnc.com
• Voicemail: 919 706 5322