While North Carolina is a no-fault divorce state, the absence of sex in a marriage can be important for establishing fault in other circumstances, such as awarding post-separation support, awarding alimony, and obtaining a divorce from bed and board. A divorce from bed and board can be misleading in that it is actually a form of legal separation rather than a traditional divorce. In seeking a divorce from bed and board, the parties must show one of the above-listed fault grounds, but they do not need to meet the one-year separation requirement such as with an absolute divorce. Also, in issuing a divorce from bed and board, a judge can also order the spouse at fault to leave the marital home, and the divorce from bed and board can be helpful support in your claim for post-separation support and/or alimony.
Traditional fault grounds include adultery, abandonment, malicious turning out of doors, indignities, cruel and barbarous treatment, and excessive drug or alcohol use. While the absence of sex in a marriage is not an enumerated fault ground, a sexless marriage can be equated to constructive abandonment when coupled with additional factors. Unlike actual marital abandonment, constructive abandonment does not require a spouse to physical leave the home. Constructive abandonment is shown when the spouse fails to fulfill the obligations of the marriage and has become mentally and emotionally absent from the marriage. Withholding love and affection, including sex, could therefore fall under the category of constructive abandonment.
To successfully prove constructive abandonment by withholding sex, you must show that your spouse is withholding sex willfully and that the behavior is beyond that of a normal marriage. To prove willfulness, you will need evidence that your spouse was aware that withholding sex was a problem for you or that you two have discussed the lack of sex in the marriage. Your spouse must have continuously and repeatedly rejected your advances and opportunities to work on the problem.
To show that the lack of sex in your marriage is beyond that of a normal marriage, you must prove to the court that there is a willful indifference or hostility on behalf of your spouse toward your needs. Again, you must show that your spouse repeatedly, consistently, and willfully rejected your sexual advances. Because many marriages experience periods of celibacy, you must show that your spouse’s rejections have carried on for a significant period of time.
Because the court will use its discretion to determine whether constructive abandonment has occurred, it is helpful to give the court additional factors that will show that your spouse has constructively abandoned the marriage, such as: substance abuse; physical abuse toward you or your children; adultery; or demonstrating a lack of concern for caring for you or your children financially and/or emotionally.