The Impact of Marital Misconduct in North Carolina

Written by: Kaitlin Romanelli Myers

North Carolina is what is considered a “no-fault” divorce state, which means marital misconduct is not relevant to get a divorce. North Carolina allows spouses to get divorced for any reason, so long as they have been separated for one (1) year or more. Marital misconduct is relevant however, for many actions that relate to divorce, specifically for claims of post-separation support and alimony. Marital misconduct is not relevant for claims for claims of equitable distribution and child support. Marital misconduct typically does not impact child custody unless the Court finds that the misconduct affects the children at issue.

Marital misconduct is defined under North Carolina General Statute as any of the following acts that occur during a marriage and prior to the date of separation:

    • Illicit sexual behavior between one spouse and someone other than the other spouse;
    • Involuntary separation of the spouses in consequence of a criminal act;
    • Abandonment;
    • Malicious turning of doors;
    • Cruel or barbarous treatment endangering the life of the other spouse;
    • Indignities rendering the condition of the other spouse intolerable and life burdensome;
    • Reckless spending of the income of either party, or destruction, waste, diversion, or concealment of assets;
    • Excessive use of alcohol or drugs to render the condition of the other spouse intolerable or burdensome;
    • Willful failure to provide necessary subsistence according to one’s means and condition as to render the conditions of the other spouse intolerable or burdensome.

When dealing with post-separation support and alimony, one of the first steps is to classify each spouse as either “supporting” or “dependent”. In a nutshell, the supporting spouse earns more money than the dependent spouse, who needs financial support from the supporting spouse to meet their essential needs. These designations are not based on gender, rather they are based solely on finances, which means a wife can be a supporting spouse and a husband can be a dependent spouse. These classifications are important when determining what impact marital misconduct will have on post-separation support or alimony.

There are (generally) three ways that marital conduct will affect post-separation support and alimony:

    1. Dependent spouse commits marital misconduct = barred from receiving post-separation support or alimony.
    2. Supporting spouse commits marital misconduct = dependent spouse more likely to receive post-separation support and/or alimony.
    3. Both spouses commit marital misconduct = these actions cancel out and the judge will consider other relevant factors when considering post-separation support and alimony.

The family law attorneys at Hall Booth Smith, P.C. are here to help you through the separation and divorce process. If you have questions about martial misconduct and how it will affect post-separation support or alimony, you should consult with an attorney to discuss the specific facts of your case and determine what impact the marital misconduct could have on your case.  If you have a post-separation support, alimony, or divorce matter in Asheville or the surrounding areas, you can call 828-232-4481.

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