North Carolina’s Divorce Based on Adultery
Adultery constitutes a fault ground for divorce in North Carolina. Now, not only a sexual act in North Carolina, but adultery is defined by a two pronged test. One is that there must be a showing of an opportunity and the intent to commit adultery. This means that both the husband and the wife have to know who the other spouse is cheating with, or have an affair with as the case may be. Now, the legal definition of adultery in North Carolina is "that act of sexual intercourse, whether under the body of another, with voluntary consent of both but with whom the marriage relation is not lawful." So this means that even if you’re separated from your spouse, if you’re out having an affair with somebody else, that is adultery and it is a fault ground for divorce in North Carolina. Now, this fault ground is important because it’s a bar against a particular type of dependent spouse support during a divorce proceeding called 20 year marriage alimony. 20 year marriage alimony is awarded when a dependent spouse, or the spouse asking for support, has been married to his or her spouse for 20 years. Adultery precludes an award of that kind of alimony. There is a specific statute that allows for a dependent spouse to bring an action against the third party that has had the affair with his or her spouse, and recover all alimony as well as reimbursement for medical expenses, fraud, property, etc. The statute is G.S. 52-12, and the statute defines alienation of affection as the "loss of consortium, comfort and society. . ." In other words, your husband or your wife has decided that he or she wants to hook up with somebody else and damages are going to by statute be awarded to the estranged spouse. Not so fast. The law , or common law, like what we talked about in last week’s video, allows you to sue the third party for alienation of affection or criminal conversation. That’s all brought though an action called "a qare facie action." However, there are no damages unless you can demonstrate that the third party knew that you were in a marital relationship with the spouse in question. The case law requires that the complaining spouse must demonstrate by showing direct or indirect evidence that the other spouse and the third party had an illicit relationship. There is no threshold to establishing an alienation of affection or criminal conversation, therefore, it is not worthwhile to do that. In criminal conversation, the elements are that the third party and your spouse had a sexual relationship during your marriage. The theory behind recovery is that when you are married, you have made a vow to pledge to each other and your husband or wife is held hostage to that agreement. Therefore, if someone else comes into your relationship and has sex with that person it’s criminal. So, the statute requires that the parties were married and that the third party had an illicit sexual relationship with your spouse. The defenses to both of these types are that they were not your husband or wife at that time. Otherwise, if we’re in a legal marriage and there is an illicit relationship, there is a cause of action for both alienation of affection and criminal conversation. The law does not consider you guilty of adultery just because someone files a complaint and says you committed adultery. Adultery must be proven by clear, cogent, and convincing evidence.
Proving Adultery in North Carolina
To prove adultery in North Carolina, the competent direct evidence must be evidence which establishes and identifies the paramour to the plaintiff or plaintiffs. Our courts have held that such direct evidence must come in the form of photographs, affidavits of witnesses and even employment records to conclusively establish the adulterous relationship. In one case, an 18 page bank statement from a Southern California account opened by the defendant after the parties separated which showed the defendant’s then 23 year old paramour (in addition to others) accompanying him on trips to Florida, Las Vegas, New York, Connecticut, South Carolina and Taiwan, a trip to a spa and their purchase of certain jewelry in New York was admitted as direct evidence of adultery. In another case, the direct evidence of adultery was Judge Adams’ testimony and the photographs he took of the defendant’s car parked overnight and morning after at his paramour’s home, at the home of her parents (where he spent Thanksgiving with her and her parents), at the beach and at a hotel in Hall County, Georgia. Third party testimony is also probative. In the Roberts case, at least six witnesses put the defendant at the plaintiff’s house at late hours of the night or early morning hours. Direct evidence of telephone calls, corresponds, gifts and bank records may also be relevant. Direct evidence of adulterous conduct which is "clear, cogent and convincing" evidence of a continuing illicit sexual relationship with a paramour includes, in one case, evidence of sexual intercourse accompanied by testimony that the defendant (1) utilized the "Wells Fargo Express Account" to make withdrawals from the parties’ marital accounts; (2) stayed out all night with her paramour at the morgue where he worked; (3) visited the party’s home during marital interregnums from their paramour’s home during her estral periods; (4) frequented hotels in a neighboring city, some twenty-five miles from the parties’ home; (5) frequented a separated motel in the same city where he lived; (6) telephoned her parents when she would return to her home from the paramour’s home consuming large sums from the parties’ marital accounts; (7) would write checks from the parties’ account to pay bills at her paramour’s home; and (8) would enter her paramour’s home at odd hours of the night and would make no effort to hide her car at the party’s home.
Adultery’s Role in Divorce
While North Carolina law does not necessarily penalize adultery in terms of legal rights to property division, alimony, or child custody, it can have an impact on specific divorce outcomes.
Division of Property
Even if adultery is used by one spouse as the basis for divorce from bed and board, adultery does not necessarily mean that he or she will be awarded a larger share of marital assets. Rather, a judge may consider cheating and its impact on the marital relationship when deciding how to divide property between spouses. Where cheating occurred during separation (but before divorce) and influenced the actions of one or both divorcing spouses, it likely will be considered in equitable distribution. A judge may consider the impact of adultery on the family, including on children. In cases where an adulterous spouse gifts marital property to a paramour, for instance, a judge may decide that the admitted cheating spouse should receive less of the marital estate as a remedy for his or her actions.
Alimony
The judge’s decision whether to award alimony will include consideration of the circumstances that resulted in separation, which may include adultery. Adultery during marriage commonly is used as an indicator of disinterest in the marriage or even intent to destroy it, factors that may be considered when determining alimony duration and amount.
Child Custody
Adultery is not legally used to determine child custody in North Carolina, but it may be considered as evidence of the moral fitness of each parent in the context of the custody decision. Evidence of cheating by one or both parents can be used to argue the fitness of that individual to act as custodial parent.
Defenses Against Adultery in Divorce
While it may seem straightforward, there are legal defenses to a claim of adultery that can be raised in Court. To begin, one defense is condonation — evidence of forgiven conduct. Another common defense to adultery is recrimination (also known as unclean hands). There are other defenses, but they are not as commonly used or successful.
To successfully plead to condonation, a defendant must show that the plaintiff has forgiven the conduct in question and resumed marital relations. The defendant does not have to demonstrate that he or she has remained faithful to the plaintiff after forgiving the plaintiff’s conduct but only that the plaintiff has forgiven the defendant’s conduct, resumed marital relations and continued for a period of time.
To successfully plead to recrimination, a defendant must show that the plaintiff is guilty of adultery even though he or she (the defendant) is also guilty . If the defendant has also committed adultery, he or she is barred by statute from receiving a divorce based upon the plaintiff’s adultery. So, if the defendant can prove that the plaintiff has also committed adultery, the defendant can avoid paying alimony and validating his or her own adultery.
However, just because a judicial determination of fault does not occur does not mean that a statute of limitations will not apply. A statute of limitations applies to breach of contract that occurred 5 years prior to November 14, 1983. If a plaintiff or defendant shows that the affair occurred more than 5 years prior to filing the complaint or cross-complaint, the person seeking divorce must show that the other waited 4 years to file the action. If so and if the filing party waived the right to file suit within one year of discovering the adultery, then it will be barred.
Adultery and Alimony in North Carolina
Adultery also affects awards of alimony. In a situation where one spouse is committing adultery during the marriage and the other spouse is not, any marital misconduct will play in favor of the innocent spouse. A third party to the relationship might have engaged in criminal conversation (as discussed above), which will also turn the table in favor of the innocent spouse by allowing him or her to advance his or her date of separation. An issue may arise when both spouses were committing adultery during the marriage. Although there is currently a split among the North Carolina Court of Appeals as to whether equal adultery bars an award of alimony to either party, the Court of Appeals in Keyser v. Keyser, 214 N.C. App. 701 (2011) has held that the trial court must make findings of fact as to the level of misconduct. LeClair v. McDonald, 149 N.C. App. 162 (2004) held that an award of alimony could be made to the spouse who was the "least at fault" in the marriage. In LeClair, an exchange of "sexual innuendo texts" to another woman by the husband were found by the trial court to be sufficient to advance his date of separation, while the wife’s conduct was not enough to advance hers. The Court held that: "’Equal fault’ in the breakdown of the marriage allows a trial court to determine which party was ‘least at fault’ in a relationship with an illicit third person, and therefore provides a statutory basis for alimony." Id. at 171.
Seek Legal Counsel for Divorce Based on Adultery
To navigate the legal complexities surrounding a divorce due to adultery, it is crucial to seek professional legal counsel. Not all family law attorneys specialize in cases involving marital misconduct, so finding an experienced lawyer in North Carolina who has successfully handled a similar situation will be an invaluable asset.
Your attorney can provide guidance based on your attorney-client privilege, ensuring that your interests are protected by confidentiality. For example, if you have proof of an affair, you may want to release the information for use in your divorce proceedings.
It’s also essential to share only what you want disclosed, even if you unintentionally reveal information. Your attorney does need to know the facts to build a strong case, and withholding information could negatively impact the entire process. Keep in mind that you should only disclose confidential information to your attorney and prepared to produce them under proper privilege exemptions.
When you first meet with a prospective attorney, they will likely charge a consultation fee. Take the time to complete the paperwork sent, carefully review the documents they gave you, and keep copies of everything. During the meeting, be prepared to discuss your side of the story and list of questions for the attorney.
If you have evidence of the affair , bring copies of any emails, letters, diary notes, or other documents that could help support your case. It’s best to explain the situation as completely as possible. The attorney may refer the matter to a law office administrator, who will give you some notebook paper to write everything down. The goal of the initial meeting is to get all the facts and begin gathering the necessary information to support your position.
Your attorney may also want to consult with a forensic accountant. Forensic accountants are often used in post-divorce discovery of hidden assets as well as income imputation. They understand the many ways people hide or disguise income and assets, which can be important if you suspect or have proof of additional assets beyond what is disclosed by your spouse. Depending on the complexity of the case, litigation may be needed to access the truth.
Understanding the nuances of adultery and divorce laws in North Carolina can be complicated and stressful. However, taking the time to prepare yourself legally, and building a network of support for your divorce, can help ease the process. Seeking the advice of a qualified and experienced attorney, can give you the assurance that you’re on the right path to divorce, and help you learn what to expect as you move ahead.
