Adultery. It’s one of those topics that most people don’t want to talk about or think about, especially at the beginning of a marriage. At the end of the marriage, however, the truth is that it’s a topic that comes up more frequently than people might expect. As a result, it is important to understand how adultery might affect a divorce. Let’s examine how adultery and divorce in North Carolina intersect, and what that could mean for your future.
Fault or No-Fault?
Many people have heard the terms “fault” and “no-fault” divorce. It’s important to understand that North Carolina, like all states in the country, is now a no-fault divorce state. When it comes to adultery and divorce in North Carolina, many people are surprised to learn that the state follows a no-fault divorce model. This means that it is not necessary to prove adultery or any other marital misconduct in order to obtain a divorce. Over time, the law has evolved in all fifty states to recognize that sometimes, two people grow apart – and there doesn’t have to be one particular reason to “justify” the divorce.
While this is true, it doesn’t mean that adultery will have no impact on a divorce whatsoever. In fact, it can still have a significant impact, depending on the circumstances involved. Although North Carolina is a no-fault divorce state, that doesn’t mean that a court cannot consider marital misconduct when it addresses the various issues in a case, including matters like child custody and spousal support.
Ultimately, it is within a judge’s discretion to decide how much alimony and property to award to each spouse in a particular case. Although a judge is not required to consider adultery when making a decision of that nature, it is important to realize that it is within the judge’s power to do so if they believe it is warranted. As a result, a spouse who might otherwise be entitled to alimony might receive less (or even nothing) depending upon the case’s particular circumstances and what the judge believes is fair.
The same is true with matters of child custody. If the circumstances of the affair were particularly egregious or emotionally harmful to the children involved, that may ultimately weigh into a judge’s decision as to what sort of parenting time each spouse should have. Certainly, this will not always be the case. As a general rule, most states in the country want to encourage divorce settlements in which both spouses spend significant time with their children after a divorce, because doing so is usually in the children’s best interest. Even so, it’s important to be aware that a court can consider adultery as a factor if it wishes.
What Other Impacts Can Adultery Have on Divorce?
In addition to the impact adultery can have on divorce generally, it’s also important to realize that in North Carolina, there are two causes of action specifically related to adultery. North Carolina is somewhat unique in this respect, as most other states no longer have similar laws. If you live in North Carolina, however, it’s important to understand these laws and how they might affect you. These causes of action include alienation of affection and criminal conversation. Let’s take a closer look at each.
Alienation of Affection
Alienation of affection may sound like a confusing term – but essentially, it means that a spouse can bring a claim against a third party that “alienated the affections” of the other spouse. For example, if a husband and wife are married, and the husband has an affair, this means that the wife can sue the other woman for “alienating” her husband’s affections. Essentially, it means that the third party acted in a way that destroyed the marriage.
Interestingly, however, these lawsuits are not necessarily only brought against a spouse’s romantic partner in an affair. In fact, they can actually also be brought against other individuals – like family members or friends – who interfere with a marriage and cause it to end. This could be a mother-in-law who never liked her daughter’s husband, constantly attempted to interfere in the marriage, and spoke negatively of the husband to his wife. It could also apply to a friend who tried to create trouble and friction in a marriage, ultimately causing one spouse to leave the other.
Understandably, depending upon the circumstances of these cases, they can be hard to prove, particularly if there is no evidence of an extramarital affair. It can be difficult to gather sufficient evidence to establish interference in the marriage, and that the interference was the direct cause of the divorce. Nevertheless, it’s important to remember that they can be costly claims to defend if they are successful – and in some instances, they are indeed successful. In certain cases, judgments have been rendered for a good deal of money.
Criminal Conversation
North Carolina also allows for criminal conversation actions. Although its name implies that it concerns two people talking to one another, this is not the case. In fact, the term “conversation” is intended to refer to the act of sexual intercourse. Thus, a “criminal conversation” occurs when one spouse engages in sexual intercourse with another outside of the marriage. The criminal conversation action allows the spouse who was not having the affair to file a suit against the partner with whom the other spouse was having an affair.
Understandably, as is the case with an alienation of affection action, it may be hard to obtain direct evidence that one spouse is having an affair. For that reason, North Carolina courts will accept circumstantial evidence like text messages, emails, or, in some cases, testimony from other people, depending upon the circumstances. Even so, proving a case like this is not easy. For that reason, it is wise to truly consider whether it is worth the time and expense of bringing such a case and your likelihood of recovering a judgment.
If you are a spouse who is considering making a claim against a third party for alienation of affection or criminal conversation, it is always wise to talk with an attorney prior to doing so to receive advice about your particular situation. There are various factors to consider, and although it may be tempting to file such a lawsuit in a moment of high emotion, the truth is that it may not always be worth it. In some instances, the third party who interfered in the marriage may not have much money or many assets. In those situations, even if you do receive a judgment, it may be hard to ultimately collect the money, and therefore not worth the time and expense of doing so.
A Few Final Thoughts
Navigating the emotional and legal aspects of adultery and divorce in North Carolina can be incredibly challenging. In addition to the specific laws and legal effects that adultery might have on your divorce, it’s also helpful to keep in mind that, simply from a practical and personal perspective, adultery can make a divorce more difficult than it might otherwise be. Having an affair before getting a divorce can understandably cause a great deal of emotional pain. Feelings of anger, resentment, and even a desire for revenge are not at all uncommon. None of these are emotions that you want to have to confront in the middle of a situation that is already difficult in and of itself.
What does all of this mean? If you’re a spouse who has had an affair or is considering an affair, it would be wise to reconsider. Waiting until you are officially divorced is almost always the wiser course of action for so many reasons.
Understandably, all of this information may seem complicated and overwhelming. If you feel that way, you should know that it is normal. The good news is that these are not issues you must face alone. It is always a wise decision to consult an attorney who knows and understands the law and can provide guidance regarding your particular circumstances. Doing so will give you peace of mind as you decide on the right path forward.
The Law Office of Dustin McCrary – Here For You.
At The Law Office of Dustin McCrary, we know that adultery is a very painful and difficult topic for many people. As with so many issues during a divorce, trying to work through various issues alone can only add to your feelings of anxiety. Instead of feeling that way, take a step toward peace of mind and hope for a brighter future ahead. Take a step toward the promise of a better tomorrow. Do that by calling us. We know and understand divorce. We’ve met so many clients who were in very painful and difficult places, and we helped them navigate this journey each step of the way. We would love to do the same for you. If you’re ready to get started, give us a call today. We look forward to talking to you soon and learning how we can help.