North Carolina law requires married couples to separate for one year before filing for an absolute divorce. However, when either spouse moves on to other relationships during that one-year period, the divorce proceedings can become a bit more complex. Sex during the separation period can cause complications and potentially have a negative outcome on divorce proceedings.
What could have been a smooth divorce can turn sour when one spouse learns the other is having sex with someone else. In North Carolina., having sex with someone other than your spouse (even after separation) constitutes adultery. Even though enforcement is unlikely, extramarital affairs can still negatively impact the divorce proceeding. If, however, this criminal act is enforced, a criminal conviction of adultery could affect your earning potential and change how a judge perceives you when making decisions on issues such as child custody.
When deciding custody, a judge has to consider what is in the child’s best interest. If your extramarital affairs during separation have an impact on your children, custody may be affected. If a parent has sex with multiple partners and is bringing their partners to the home where the children are staying, it could indicate to the judge that the parent is not behaving responsibly. However, if a parent engages in sex while the children are in the other parent’s custody, this may not directly affect the children.
Also, sex after separation can have an effect on spousal support. When deciding the issue of alimony in North Carolina., certain “fault grounds” can factor into your alimony claim. A dependent spouse who would have received alimony is ineligible for alimony if there was an affair while the spouses lived together. While sex during separation does not officially prevent a dependent spouse from receiving alimony, a judge can decide it is corroborating evidence that the dependent spouse had an affair before the separation. In addition, evidence of a post-separation affair can be used as evidence of cohabitation by a dependent spouse, which terminates post-separation support and alimony. North Carolina law states that cohabitation is “… evidenced by the voluntary mutual assumptions of those marital rights, duties, and obligations which are usually manifested by married people, and which include but are not necessarily dependent on, sexual relations.”
Sex outside the marriage can have an impact on your divorce proceeding and even criminal implications for you, but it can also have legal ramifications for your new significant other. It is very possible for your current spouse to sue your new significant other for Alienation of Affection. Your spouse will simply have to prove that a third person (your new lover) caused you to lose affection for your spouse. The courts have said that sex prior to separation is relevant, although the person making the claim does not have to prove sex occurred.
Sex after the date of separation can also be relevant if it corroborates conduct before the separation. It may also be considered in situations where the separated couple is attempting to reconcile, as it corroborates the spouses’ actions prior to the separation.
Criminal Conversation can be more simple to prove than alienation of affection because the person filing the action only needs to establish that he or she was legally married when sex with the third party occurred and that the sex did occur. Similar to an alienation of affection suit, sex after separation can be used to corroborate conduct prior to the separation. Having sex during a separation can put a third party – someone you may care about – at risk of a lawsuit.
Overall, there are a lot of consequences that could come from having sex with someone other than your spouse during separation. Moving on with your life too quickly can have emotional and legal consequences that will make it harder to settle your divorce. The best thing to do during your divorce proceeding is to focus your attention on settling all outstanding issues surrounding your case rather than moving on to a new significant other.