Does Marital Misconduct Or Fault Play A Factor?

Yes, marital misconduct may play a role in whether or not a trial judge may award Post Separation Support or Alimony in North Carolina. North Carolina General Statutes list the following as marital misconduct: Illicit sexual behavior; 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.

Only conduct during the marriage and on or before the date of separation counts

In North Carolina, G.S. 50-16.1A(3) opens with a limitation that matters as much as the list itself: marital misconduct means any of the listed acts “that occur during the marriage and prior to or on the date of separation”. Conduct after the parties separated falls outside the definition, and conduct before the marriage falls outside it as well.

There is one route by which later conduct still reaches the court. G.S. 50-16.2A(e) provides that nothing in the section prevents a court “from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation”. The same sentence is repeated inside the first alimony factor at G.S. 50-16.3A(b)(1). Post-separation conduct is corroboration of something else, not a free-standing ground.

Illicit sexual behavior is the only category with a mandatory consequence

In North Carolina, most marital misconduct is weighed. Illicit sexual behavior is treated differently in the alimony statute. G.S. 50-16.3A(a) sets three rules. If the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, “the court shall not award alimony”. If the court finds that the supporting spouse participated in such an act, “the court shall order that alimony be paid to a dependent spouse”. If the court finds that each of them participated in such an act, alimony “shall be denied or awarded in the discretion of the court after consideration of all of the circumstances”.

The term is defined in G.S. 50-16.1A(3)a. as “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”. The definition turns on the act rather than on the emotional history of the marriage. But the consequence is not automatic on proof of the act alone: it is reached only once the court has satisfied itself that the other spouse did not also participate in such an act, and that the act was not condoned. Both qualifications appear in the same subsection, and both are ordinarily contested.

Two further points confine the rules. They attach to the dependent spouse and the supporting spouse as the statute defines those terms, so they only operate once the status findings under G.S. 50-16.1A(2) and (5) have been made; and they belong to the alimony claim. Nothing in G.S. 50-16.2A creates an equivalent bar or an equivalent mandatory award for postseparation support.

Condonation removes the act from the court’s consideration entirely

In North Carolina, G.S. 50-16.3A(a) provides that “any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court”. Condonation is forgiveness by a spouse who knew of the conduct, ordinarily shown by a resumption of the marital relationship after the conduct became known.

The practical effect is that what looks like a mandatory bar can be neutralized by what happened afterwards. Where a spouse learned of the conduct and the marriage continued, the party relying on the conduct faces a condonation question before the statutory consequence is reached at all. This is a frequently contested issue in Mecklenburg County alimony trials, because it converts what looks like a decisive fact into a disputed one, and because the evidence tends to be the parties’ own accounts of the months that followed.

In postseparation support, misconduct is considered but is not a mandatory bar

In North Carolina, the postseparation support statute treats misconduct differently. G.S. 50-16.2A(d) directs that at a hearing on postseparation support “the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support”.

The same subsection then imposes a reciprocal duty, and it is a conditional one: when the judge considers those acts by the dependent spouse, “the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support”. The duty is triggered by the court’s consideration of the dependent spouse’s conduct, not by the fact that an allegation has been made. A party who raises the other spouse’s conduct at a postseparation support hearing therefore opens the door to their own.

Nothing in G.S. 50-16.2A creates the mandatory bar or the mandatory award that G.S. 50-16.3A(a) creates for alimony. Misconduct does, however, change the shape of the inquiry. G.S. 50-16.2A(c) confers the entitlement to an award “except when subsection (d) of this section applies”, so where the dependent spouse’s conduct is in issue the financial findings no longer carry the claim on their own, and whether to award postseparation support at all becomes a matter for the judge. Denial on that basis is possible; it is simply not compelled.

Misconduct is also the first factor in setting amount and duration

In North Carolina, misconduct does not stop at entitlement. G.S. 50-16.3A(b)(1) makes “the marital misconduct of either of the spouses” the first of the sixteen factors the court considers in determining the amount, duration and manner of payment of alimony, and – because G.S. 50-16.3A(a) requires the equity finding to be made “after considering all relevant factors, including those set out in subsection (b)” – in deciding whether an award is equitable at all. The remaining fifteen factors are almost entirely economic: earnings and earning capacities, ages and health, duration of the marriage, standard of living, relative assets and liabilities, contributions as homemaker, tax consequences.

Because misconduct is a factor, it is subject to the findings requirement in G.S. 50-16.3A(c). Except where there is a motion before the court for summary judgment, judgment on the pleadings, or another motion for which the Rules of Civil Procedure do not require special findings of fact, the court “shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor”. An order that records misconduct evidence without a finding on it is vulnerable on appeal.

Either spouse may ask for a jury on the misconduct question

In North Carolina, G.S. 50-16.3A(d) provides that in the claim for alimony either spouse may request a jury trial on the issue of marital misconduct as defined in G.S. 50-16.1A, and that where a jury trial is requested the jury decides whether either spouse or both have established marital misconduct.

This is one of the very few jury questions in North Carolina family law, where almost everything is decided by a district court judge sitting without a jury. The jury decides only the misconduct issue. Dependency, ability to pay, amount, duration and manner of payment remain with the judge. There is no jury right at a postseparation support hearing, which is decided by the judge under G.S. 50-16.2A and G.S. 50-16.8.

Financial misconduct is misconduct too

In North Carolina, the statutory list is not confined to conduct between the spouses personally. G.S. 50-16.1A(3)g. includes “reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets”, and G.S. 50-16.1A(3)i. includes wilful 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. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome appears at G.S. 50-16.1A(3)h.

Conduct of that kind often surfaces twice in the same case. It is marital misconduct for the purposes of G.S. 50-16.2A(d) and G.S. 50-16.3A(b)(1), and the underlying transactions are usually also relevant to the equitable distribution claim under G.S. 50-20, where the court considers the listed distributional factors before ordering anything other than an equal division of marital property. The two claims are nonetheless kept apart by G.S. 50-20(f), which requires the court to provide for an equitable distribution “without regard to alimony for either party or support of the children of both parties”.

Common questions

Does adultery automatically bar alimony in North Carolina?

It bars alimony for a dependent spouse, subject to two qualifications written into the same subsection. Under G.S. 50-16.3A(a), a finding that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation means the court shall not award alimony. If the court finds that the supporting spouse also participated in such an act, alimony is denied or awarded in the discretion of the court after consideration of all of the circumstances. And any act condoned by the other party shall not be considered by the court at all. The statutory term is illicit sexual behavior, defined in G.S. 50-16.1A(3)a., which is broader than adultery in ordinary usage.

Does misconduct after the date of separation matter in North Carolina?

Only as corroboration. G.S. 50-16.1A(3) limits marital misconduct to acts occurring during the marriage and prior to or on the date of separation. G.S. 50-16.2A(e), and the same language inside G.S. 50-16.3A(b)(1), allow a court to consider post date-of-separation misconduct as corroborating evidence supporting other evidence that misconduct occurred during the marriage and prior to the date of separation. It cannot stand on its own.

Can marital misconduct affect postseparation support in North Carolina?

Yes. G.S. 50-16.2A(d) requires the judge to consider marital misconduct by the dependent spouse occurring prior to or on the date of separation, both in deciding whether to award postseparation support and in deciding the amount. Where the judge considers those acts, the same subsection requires consideration of any marital misconduct by the supporting spouse. No category of misconduct operates as an automatic bar at that stage, but the effect is not nil: G.S. 50-16.2A(c) confers the entitlement to an award “except when subsection (d) of this section applies”, so where the dependent spouse’s conduct is in issue the award becomes a matter for the judge rather than something the financial findings secure.

Who decides whether marital misconduct occurred?

The district court judge, unless a jury is requested. G.S. 50-16.3A(d) allows either spouse to request a jury trial on the issue of marital misconduct within the alimony claim, in which case the jury decides whether either spouse or both have established marital misconduct. Everything else – dependency, ability to pay, amount, duration and manner of payment – remains with the judge under G.S. 50-16.3A(b) and (c). There is no jury at a postseparation support hearing.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.