Effect of Marital Misconduct


What is Marital Misconduct?

Although Marital Misconduct has several definitions under the NC statutes, for purposes of alimony, marital misconduct is illicit sexual behavior (a lawyers way of saying that someone fooled around on their spouse).  Just for kicks, here is the legal definition under NCGS 50-16.1A is:

“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 has had an affair (i.e. slept with someone other than each other), then there has been marital misconduct.

How does “illicit sexual behavior” impact alimony?

North Carolina doesn’t like spouses that cheat on one another, and the financial ramifications of doing so are harsh indeed.  If you are considered the supporting spouse (i.e., the spouse who would be writing a monthly check for alimony), and your spouse cheated on you before you separated, then they are not entitled to alimony.  It doesn’t matter how long you were married or how gross the disparity in your incomes – if your spouse cheated, you don’t pay alimony.

However, assuming that you are still the supporting spouse, and you alone cheated, then the court by statute must order you to pay alimony.

Finally, let’s assume that both you and your spouse committed adultery.  In this case, the court will look to the statutory factors to determine whether an award of alimony is appropriate.

What if I forgave my Spouse?

If one spouse knows that the other had an affair, and they forgave them/condoned the behavior, then the court will not consider any evidence of the affair.

Who decides if there has been an affair?

Either spouse may request a jury trial on the sole issue of whether there was marital misconduct.  If the jury finds that there was marital misconduct, then the court will determine whether or not alimony shall be awarded.  The court will also consider the statutory factors to determine how much alimony should be awarded and for how long it will be paid.


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