Many marriages end because of bad behavior committed by at least one of the spouses. If you or your spouse has committed bad behavior, you may be wondering what, if any, effect that behavior will have on your case. The answer is it depends on what issue is being litigated and what the behavior is. Marital misconduct is defined in the North Carolina family law statutes as:
- Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14‑27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse;
- Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
- Abandonment of the other spouse;
- Malicious turning out‑of‑doors of the other spouse;
- 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 the destruction, waste, diversion, or concealment of assets;
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
- Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.
Marital misconduct allegations most often come up in the context of a spousal support case. When one party is seeking alimony from the other party, in order to award alimony, the trial court must find that one spouse is a dependent spouse and the other is a supporting spouse and that alimony is fair taking into consideration the situation. It is in the fairness analysis that the trial court looks at whether one spouse has committed an act of marital misconduct. If the supporting spouse has had an affair, then the trial court shall award alimony. If the dependent spouse has had an affair, then the trial court shall not award alimony. If both parties have had an affair, the trial court is free to award or deny alimony based on the other factors. Aside from the misconduct of an affair, the other types of marital misconduct listed are factors to be taken into consideration and are not determinative on the issue of alimony.
Sometimes a party will want to talk about marital misconduct in a property division case. However, marital misconduct is hardly ever relevant in a property division case and the only type of marital misconduct that is relevant in a property division case is misconduct that has to do with the parties’ assets and debts. If, for example, one party has recklessly spent the parties’ money or has wasted marital assets, that type of financial misconduct is relevant to the trial court in its determination of how to divide the parties’ assets and debts.
In a child support case, misconduct is relevant to the extent that it affects a party’s income. If, for example, a party quits his job or deliberately behaves in a way that causes him to lose his job, that behavior is relevant. If, however, a party is simply a jerk and has behaved badly toward the other party, that is not relevant to a determination of child support.
Finally, in a custody case, the parties’ behavior is relevant to the extent that it affects the welfare and wellbeing of the children. If, for example, one party is having an affair but that affair did not have any effect on the children (i.e. the children did not know about it and it did not affect that parent’s parenting of the children), then misconduct is not relevant to a custody determination. If, however, misconduct does have an effect on the children (e.g. one party committed acts of domestic violence against the other party and the children witnessed it or if one party deliberately absented himself from the home and was not involved in the care of the children), then misconduct can be considered in a custody case.
If you believe that your spouse has committed acts of marital misconduct and you are wondering what effect that misconduct has on your case, consider speaking with an attorney at Collins Family & Elder Law Group about your case.
