Alimony Laws in North Carolina on Extramarital Affairs
By Beverly Bird
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North Carolina is one of the most unforgiving states in the country when it comes to adultery. At the time of publication, it is one of only 32 states that still recognize fault-based divorce grounds of any kind. It not only considers adultery a ground for divorce, but it has passed special legislation to address adultery’s effect on alimony issues.
On October 1, 1995, the North Carolina law of alimony changed dramatically. At the time of publication, as per the 1995 divorce legislation, North Carolina’s statutes mandate that when one spouse can’t support herself in the style, which she enjoyed while married, she is entitled to alimony. A judge will compare the incomes and expenses of both spouses. The one who earns less is considered the dependent spouse if she cannot meet her budget on her own earnings. If she can meet her expenses because her budget is no-frills and void of any luxuries, but she enjoyed luxuries when she was married, she is entitled to alimony from the supporting spouse, the one who earns more.
Effect of Adultery
Before 1995, the law in North Carolina absolutely prohibited a spouse who had committed adultery from receiving alimony. It did not matter if she had enough income to support herself or even if her affair occurred after she separated from her spouse. Under the changes implemented by the 1995 legislation, a dependent spouse is penalized only if she strayed before separating from her spouse. Even then, if the supporting spouse also engaged in an extramarital affair before separation, the dependent spouse's act of adultery cannot be held against her. A judge can still award her alimony. If the dependent spouse does not commit an adulterous act, but the supporting spouse does, he’ll be required to pay alimony unless both spouses earn similar incomes.
Nature of Support
North Carolina recognizes two kinds of alimony: post-separation and permanent. Post-separation alimony provides for the dependent spouse until the date of a final divorce decree, when the court distributes marital property. The terms of the decree then supersede the post-separation order with permanent alimony that takes property distribution into consideration. The term “permanent” alimony refers to the fact that the decree permanently ends the marriage; it does not necessarily mean that the dependent spouse will receive alimony for the rest of her life. If her income improves dramatically, the supporting spouse can usually petition the court to end alimony. If she remarries or even cohabits with someone else in a romantic relationship, alimony usually ends.
A spouse who accuses her partner of having an extramarital affair must prove the adultery to the court for North Carolina’s alimony law to take effect. Normally, a single judge hears divorce matters, but a wronged spouse has the right to request a trial by jury to prove marital misconduct. She must show beyond a reasonable doubt that her spouse had the opportunity to stray because he was alone with his paramour for extended periods of time in places where sexual contact could have occurred. She must also prove that he was “inclined” to stray, meaning that someone, usually a private investigator, witnessed him in romantic situations with his paramour or discovered love letters, emails or texts exchanged between them. Even when a spouse proves adultery to the court’s satisfaction, the accused can raise the defense that she condoned or forgave him for his behavior if she maintained the marital relationship after discovering his extramarital affair.
- Montgomery Family Law: Alimony and Spousal Support in North Carolina
- Kevin R. Brackett: Spousal Support/Maintenance & Alimony
- Gailor Wallis Hunt: Alimony and Sex in North Carolina
- Krusch & Sellers: Adultery in North Carolina
- American Bar Association: Grounds for Divorce and Residency Requirements (PDF)
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.