Does it Matter Who is at Fault?

In North Carolina, an absolute divorce can only be effectuated by individuals who are residents of North Carolina for six months and are either separated for one year or is married to a spouse with incurable insanity. Fault plays no role in an absolute divorce and only comes into play when individuals are seeking a Divorce from Bed and Board, also known as a mens et thoro.

The statute closes off fault as a defense to absolute divorce

In North Carolina, G.S. 50-6 does not merely leave fault out of the elements; it forbids its use as an answer. A divorce under that section “shall not be barred to either party by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination.” The spouse who left, the spouse who committed adultery and the spouse who did neither are in the same position once the year has run.

That is why the pleadings in an absolute divorce case are so short. G.S. 50-8 requires the complaint to be verified in accordance with Rule 11, to allege that the complainant or the defendant has been a resident of North Carolina for at least six months next preceding the filing, and to give the name and age of any minor child of the marriage or state that there are none. The same section requires an allegation that the grounds have existed to the plaintiff’s knowledge for at least six months before filing, but excepts the one-year separation ground from that requirement. Nothing in the section calls for an account of why the marriage ended.

Fault is decisive for alimony, and in two directions

In North Carolina, G.S. 50-16.3A(a) makes one category of fault determinative rather than merely relevant. 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 it finds that the supporting spouse did so, the court “shall order that alimony be paid to a dependent spouse”. Where the court finds that each of them participated in such an act in that period, alimony “shall be denied or awarded in the discretion of the court after consideration of all of the circumstances”. Outside those findings the general rule in the same subsection applies: the court shall award alimony on a finding of a dependent spouse, a supporting spouse, and that an award is equitable after considering all relevant factors.

The statute defines the conduct precisely. Under G.S. 50-16.1A, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts as defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse. G.S. 50-16.3A(a) also 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. That exclusion is confined to illicit sexual behavior; it does not extend to the other categories of marital misconduct, which remain available to the court even where they have been forgiven.

Marital misconduct is a longer list than adultery

In North Carolina, G.S. 50-16.1A defines marital misconduct as any of a list of acts occurring during the marriage and prior to or on the date of separation, and the alimony analysis draws on all of it, not only the illicit sexual behavior that triggers the mandatory rules.

Illicit sexual behavior, as defined in the section
Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding for alimony
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 income, or the destruction, waste, diversion or concealment of assets
Excessive use of alcohol or drugs rendering the condition of the other spouse intolerable and life burdensome
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

Postseparation support weighs fault differently

In North Carolina, postseparation support under G.S. 50-16.2A turns first on need and ability. Under subsection (c), except when subsection (d) applies, a dependent spouse is entitled to an award if, on consideration of the factors in subsection (b), the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay. Those factors take in the parties’ accustomed standard of living, present employment income and other recurring earnings, income-earning abilities, debt service obligations, reasonably necessary expenses and each party’s legal obligations to support others.

Fault enters, but without the mandatory character it has in alimony. G.S. 50-16.2A(d) directs the judge to 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, and provides that when the judge considers those acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse. The duty to weigh the supporting spouse’s conduct is expressed as conditional on the court weighing the dependent spouse’s conduct, rather than as a free-standing requirement. Nothing in the section requires the claim to be refused because misconduct is found.

Equitable distribution is largely indifferent to marital fault

In North Carolina, the factors in G.S. 50-20(c) that can displace the direction that there be an equal division of net marital and net divisible property are economic rather than moral. They address income, property and liabilities, the duration of the marriage, the need of a custodial parent to occupy the marital residence, contributions to the other spouse’s education or earning power, the liquid or non-liquid character of assets, and tax consequences. Adultery as such does not appear among them.

The one factor that comes close is G.S. 50-20(c)(11a), which directs the court to consider acts of either party “to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.” That reaches conduct toward the assets, not conduct toward the spouse. The list closes with G.S. 50-20(c)(12), “any other factor which the court finds to be just and proper”, which is a general catch-all rather than a route for redistributing property on account of marital fault.

Fault matters to custody only through the child

In North Carolina, G.S. 50-13.2(a) directs that custody be awarded to the person, agency, organization or institution “as will best promote the interest and welfare of the child”, and requires the court to consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party. The order must contain written findings of fact that reflect the consideration of each of those factors and that support the determination of what is in the best interest of the child.

Between the parents, whether natural or adoptive, the statute applies no presumption as to who will better promote the child’s welfare. It also provides that if a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. Conduct within the marriage is therefore relevant where it bears on the child, and not because it caused the breakdown.

The one action where fault is the whole case

In North Carolina, divorce from bed and board under G.S. 50-7 is the action in which fault is not merely relevant but is the entire ground. The court may grant it on the application of the party injured where the other party abandons his or her family, maliciously turns the other out of doors, by cruel or barbarous treatment endangers the life of the other, offers such indignities as to render the other’s condition intolerable and life burdensome, becomes an excessive user of alcohol or drugs with that effect, or commits adultery.

Because it is a fault action, the answers available in it are the ones G.S. 50-6 shuts out of an absolute divorce, including recrimination and condonation. Under G.S. 50-10 the material facts are deemed denied and must be found by a judge or a jury, which in a Charlotte case means the District Court in Mecklenburg County sitting on evidence about conduct.

Common questions

Does adultery affect who gets the house in North Carolina?

Not directly. Equitable distribution under G.S. 50-20 begins from the direction that there be an equal division of net marital and net divisible property unless the court determines that an equal division is not equitable, and the factors in G.S. 50-20(c) that can displace it are economic. The closest to conduct is G.S. 50-20(c)(11a), which addresses acts to preserve or to waste, neglect, devalue or convert marital or divisible property after separation. Adultery is significant instead under the alimony rules in G.S. 50-16.3A(a).

Can a spouse be refused a divorce for abandoning the family?

No. G.S. 50-6 provides that an absolute divorce is not barred by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination, and abandonment is one of the G.S. 50-7 grounds. Abandonment remains marital misconduct under G.S. 50-16.1A and can bear on alimony under G.S. 50-16.3A and on postseparation support under G.S. 50-16.2A, where the judge is directed to consider misconduct by the dependent spouse and, when doing so, misconduct by the supporting spouse as well.

Does misconduct after separation count?

The definition of marital misconduct in G.S. 50-16.1A is limited to acts occurring during the marriage and prior to or on the date of separation, and the mandatory rules in G.S. 50-16.3A(a) are tied to the same window. G.S. 50-16.3A(b)(1) allows incidents of marital misconduct after the date of separation to be considered as corroborating evidence supporting other evidence that misconduct occurred during the marriage and before the date of separation. Post-separation conduct also has its own routes into a case: G.S. 50-20(c)(11a) covers waste or preservation of property after separation, and G.S. 50-13.2(a) covers anything bearing on the welfare of a child.

Why does the date of separation matter so much to fault?

Because the statutes fix their tests to it. G.S. 50-16.1A defines marital misconduct by reference to acts during the marriage and prior to or on the date of separation, G.S. 50-16.3A(a) applies its mandatory alimony rules to illicit sexual behavior in that same period, and G.S. 50-21(b) values marital property as of the date of separation. Moving the date moves what conduct and what assets are inside the case.

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