In North Carolina, alimony is awarded to the dependent spouse upon a finding that one spouse is a dependent spouse, one spouse is a supporting spouse, and that an award of alimony is fair after considering all other factors. However, despite the showing of the three requirements above, evidence of illicit sexual behavior between either spouse may bar an individual from an alimony award. In this context, Illicit sexual behaviors are sexual acts that are voluntarily engaged in by a spouse with someone other than the other spouse; in other words, adultery.
According to the General Statutes, there are three situations involving adulterous behavior that will affect an award of alimony:
- If the dependent spouse participated in an act of adultery during the marriage and prior to or on the date of separation, then the dependent spouse is barred from receiving.
- If the supporting spouse participated in an act of adultery during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse, and the adultery committed by the supporting spouse shall be a factor in the amount of alimony to be paid by the supporting spouse, as well as the duration in which alimony is paid by the supporting spouse.
- If both parties participated in an act of adultery during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Often times, the dependent spouse will be able to raise an affirmative defense of recrimination.
However, in the case that one spouse knows of the other adulterous acts, but condones the behavior by not taking action, then the act of adultery condoned by either spouse will not be considered by the court, and the spouse may raise an affirmative defense of condonation. In addition to alimony, the adulterous acts may also be a factor taken into consideration as marital misconduct in a post-separation support award.
If you need legal advice or representation in a divorce regarding alimony or post-separation support, please contact one of our lawyers at Jetton & Meredith. Our family law attorneys are equipped with knowledge and experience to help you maneuver through these difficult times.