Marital misconduct comes in a variety of forms.  But first, let’s talk about what issues marital misconduct is and is not applicable to: 

• Child support – little to no application, this is based on a worksheet of incomes and expenses. 

• Equitable Distribution – Mostly no application, the judge is not even allowed to consider this unless it had a direct economic impact on the value of marital assets or debts, which is a fairly rare occurrence. 

• Child Custody – In determining what the best interests of the children are, I have rarely found a judge to care about what wrongs one spouse did to the other, except in circumstances of domestic violence or drug addiction/alcoholism.

• Post-Separation Support – Only relevant if the supporting spouse raises the issue at the trial.

• Alimony – Always relevant.

• Divorce from Bed and Board – Always relevant in specific forms listed in the divorce from bed and board post, if this is a claim that exists in your case.

So, the takeaway from above is that there is a good chance that the marital misconduct of the other spouse is less relevant to your case than you may anticipate.  Often times, the other spouse’s misconduct is all that matters to someone I first meet with, as the pain involved is deep and there has been little time for healing.  But, I wouldn’t be doing you any favors if I did not explain to you that in the world of family law, a lot of people have wronged their spouses.  Often times, both spouses have wronged each other in one way or another.  Judges see so many of these cases day-in and day-out that there can both be a tendency to assume that both spouses are at fault in most marriages in some way, and can lead to a tendency to develop emotional calluses from hearing so many accusations of misconduct. 

That being said, provable marital misconduct in the following forms, that was neither condoned nor forgiven by the innocent spouse, can have an impact on the issues of Alimony and Post-Separation Support in your case:

• 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;  

  • In the area of Alimony (not including Post-Separation Support), this form of marital misconduct on behalf of the supporting spouse only will require the Court to award the dependent spouse some amount of alimony for some period of time. If this form of marital misconduct is committed only by the dependent spouse then the dependent spouse is barred from receiving Alimony.  This is the only form of marital misconduct where the Court is mandated to award or deny alimony based solely on the misconduct.  If both parties have engaged in illicit sexual behavior, then the Court will consider that amongst all other factors listed in the section on Alimony.

•  Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;

•  Abandonment of the other spouse;  (Abandonment is bringing about the end of cohabitation by one spouse unilaterally, without justification and without the intent to resume cohabitation)  The phrase “without justification” is the most misunderstood part of the definition in my experience.  Many people seem to live in an awful home environment for fear of abandoning the other party, when they would be more than justified in moving out.  If you have question about how this concept would apply to your situation, we can discuss this in a consultation.

•  Malicious turning out-of-doors of the other spouse; (Basically this is the kicking or locking of the other parent out of the house)

•  Cruel or barbarous treatment endangering the life of the other spouse;

•  Indignities rendering the condition of the other spouse intolerable and life burdensome; Indignities is another intentionally vague term designed to catch all those particularly awful and spiteful things that one spouse could say or do to the other that make it unbearable to continuing living together. 

•  Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;

•  Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;

•  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.

If your spouse has committed one of the above-listed acts of marital misconduct that you have neither condoned, nor forgiven, then be prepared to discuss the details of that misconduct and, importantly, what evidence there is to prove it.