Alienation of Affection/Marital Torts in North Carolina

Home : Alienation of Affection/Marital Torts in North Carolina

In many divorce cases, each spouse blames the other for the divorce.  Sometimes the cause is lack of communication, fundamental differences in goals and values, or what some describe as simply “growing apart.”  In these situations, there may not be a specific “bad act” that a spouse can point to as the cause of the divorce.  In other divorces, however, an affair is the triggering event.  It’s natural to blame the cheating spouse in these situations.  But from a legal standpoint, does blame matter?  In North Carolina, the answer is yes.

North Carolina’s alimony law requires the judge to first determine whether one spouse is a “supporting spouse” and the other spouse is a “dependent spouse.”  A “dependent spouse” is, generally, one who is financially dependent upon the other (“supporting”) spouse.  After determining whether one of the spouses is a “dependent spouse,” the judge considers a variety of factors in determining whether to award alimony.  Most of these factors are economic, but one specifically has to do with fault: Did one or both spouses commit “marital misconduct” during the marriage?

Marital misconduct includes: adultery or other sexual contact with a third party (referred to by statute as “illicit sexual behavior”); abandonment; domestic violence; excessive alcohol or substance abuse; reckless spending; the diversion or concealment of marital assets; and other acts not specified in the statute but which fall under the catch-all of “indignities.”

The fact that a spouse committed some form of marital misconduct does not necessarily dictate the outcome of an alimony case – with one exception:  If the judge determines that the supporting spouse had a sexual affair, the judge is required by law to award alimony to the non-cheating dependent spouse.  If the dependent spouse had an affair, the judge must deny the alimony claim.  If both parties cheated, an award is within the judge’s discretion.  If alimony is awarded, the amount and duration are up to the judge.

Adultery has other implications as well.  If your spouse cheated on you, or you cheated on your spouse, while you were living together in North Carolina, the third-party paramour (the person with whom you or your spouse had and affair) could potentially be sued for alienation of affections and/or criminal conversation.  North Carolina is one of the few states that still allow these two marital torts.
Having an affair is not the only type of marital fault that can give rise to marital torts. Although they are not commonly filed, civil lawsuits between spouses claims such as assault and battery, intentional infliction of emotional distress and invasion of privacy have been successfully pursued as well.

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