Divorce cases can be volatile, especially if one of the spouses has committed adultery. In North Carolina, couples must be separated for one year before the court will grant them an Absolute Divorce, and the law does not make an exception for adultery. Although North Carolina is a "no fault" divorce state, one or both spouses' infidelity can affect the final settlement.
Alimony in North Carolina Divorce
North Carolina is an "equitable distribution" state, so the court divides the couple's marital assets equitably, not necessarily equally. When determining if alimony payments are appropriate, the court considers any marital misconduct, the earning capacity of each spouse, ages, length of marriage, and standard of living, among other factors. The financially-dependent spouse must show the court that he or she cannot meet the expenses in the budget with his or her own earnings, even when living a no-frills lifestyle.
North Carolina law considers adultery "marital misconduct," so it can significantly affect alimony payments. However, the court does not consider adultery "marital misconduct" if the other spouse condones the infidelity or forgives the other spouse for his or her actions. If the spouse with stronger earning potential committed adultery, the court must award alimony. If the financially-dependent spouse committed adultery, the court may deny alimony, especially if the financially-dependent spouse moves in with his or her paramour.
Property Division in North Carolina Divorce
In some cases, adultery can also affect property division, especially if the spouse committing the infidelity used a significant amount of marital assets to entertain or support a paramour, such as large amounts of money from a joint bank account. The court may find that awarding more marital assets to the other spouse is equitable.
Child Custody and Child Support in North Carolina
Adultery rarely affects child custody. North Carolina's standard is "in the best interest of the child." If the spouse committing adultery did not expose the children to inappropriate or dangerous situations related to the affair and is otherwise a fit parent, he or she will retain legal custody.
North Carolina has very specific guidelines for determining child support payments. Adultery does not affect this in any way.
Has Your Spouse Committed Adultery in North Carolina?
Although the court cannot grant an absolute divorce for adultery until you have been separated from your spouse for one year, you can file for a divorce from Bed and Board on the grounds of adultery. This is a fault-based, court-ordered legal separation. As part of this separation, if you are the financially-dependent spouse, you may file for post-separation alimony, which will provide financial support until the court grants your final divorce decree. You may also ask the court to grant you possession of the family home.
If your spouse committed adultery and you are considering filing for divorce, contact the family law attorneys at Jerkins Family Law in Raleigh, North Carolina, today. Our dedicated attorneys understand that you may be feeling hurt and betrayed, and we can present the strongest case to the judge for you or negotiate out of court to prevent further embarrassment -- though it is a perfectly normal and justified emotion -- during this emotional time. Visit our Divorce page and call our office at (919) 719-2785 or contact us online.