Does Cheating Affect Divorce?

Adultery Can Prevent A Dependent Spouse From Receiving Alimony

Cheating and divorce can affect a “divorce” in North Carolina if the “cheating” included adultery and if alimony is at issue. If alimony is not at issue (because both spouses earn similar incomes and have similar expenses), then cheating may not matter in the divorce proceeding.

If alimony is at issue, then cheating and divorce does matter

Essentially, if you cheated on your spouse (committed adultery), then you are barred from receiving alimony and could even be required to pay the other innocent spouse alimony. If both spouses committed adultery, then it becomes up to the judge to decide whether alimony should be awarded. The applicable statute is North Carolina General Statute Section 50-16.3A.

How much alimony should be paid from one spouse to another spouse is based on one spouse’s financial need and the other spouse’s ability to pay alimony to meet that need. In deciding whether alimony should be awarded, how much, and for how long, judges consider a variety of circumstances and factors including “marital misconduct.” One of the acts that falls under the definition of “marital misconduct” is adultery. This is why cheating and divorce cases often involve complex legal battles.

This discussion assumes the cheating can be proven. If cheating occurred during your marriage, you need to speak with an experienced family law attorney about what proof is needed to prove adultery and whether you or the other spouse has sufficient evidence of adultery or if there is anything that can be done to obtain the evidence needed.

Even if alimony isn’t an issue, an extramarital relationship may still be relevant to your equitable distribution action if your spouse spent money on their paramour during the marriage. This is known as “marital waste” and be a reason for the victim spouse to receive more money in property settlement. In many cheating and divorce cases, financial misconduct plays a crucial role in determining asset division.

Cheating and Divorce, Will It Speed Things Up?

While cheating and divorce can affect things like alimony in a divorce, it doesn’t help speed up the process. In North Carolina, the main requirement for an absolute divorce is that the couple has been separated for at least a year and a day. Once that time has passed, they can file for divorce. If they haven’t been separated long enough, they’ll have to wait. So, cheating and divorce don’t go hand in hand when it comes to speeding up the process.

That said, adultery can play a role in something called a “divorce from bed and board,” which is a legal separation, not an actual divorce. It’s a fault-based action that some spouses use to try to get the other person out of the home. This type of divorce requires going to court, and it can lead to an awkward situation since both spouses are likely still living together during the proceedings. In many cheating and divorce cases, emotions run high, making the legal process even more complicated.

Cheating Is Unlikely To Impact Child Custody

Cheating and divorce most likely won’t impact child custody unless the cheating occurred around the minor children or otherwise negatively impacted them. While many parents believe it isn’t in their child’s best interests to see one parent engaging in an extramarital relationship or dating someone they cheated on the other parent with, cheating alone would seldom be a basis to deny or limit one parent’s custodial rights.

Cheating and Divorce, Can You Get Compensation?

Although cheating doesn’t usually impact divorce proceedings between spouses, it can lead to serious consequences when it comes to the third party involved in the affair. If you’ve been cheated on, you might want to look into civil actions like alienation of affections or criminal conversation. These legal claims could allow you to seek compensation from the person who was involved with your spouse.

To prove alienation of affections, you need to show that there was genuine love and affection in the marriage, that the third party’s actions caused the loss of that affection, and that these actions were intentional and harmful.

With criminal conversation, the focus is on proving that the third party had an affair with your spouse. Even if your spouse was the one who initiated it, the third party can still be held accountable.

While some lawyers and judges have tried to eliminate these claims, they’re still very much in play. If you’ve been affected by cheating and divorce, these civil actions could be worth exploring to hold the third party accountable for their role in your pain.

Adultery Is A Crime

Yes, adultery is still a crime in North Carolina. It is a Class 2 misdemeanor, which means  a person charged and found guilty of committing the criminal offense of adultery could be sentenced to 1-60 days of community, intermediate, or active punishment and fined up to $1,000. “Active punishment” means jail time. This means that under the law in North Carolina, you could go to jail for 60 days and receive a $1,000 fine for cheating on your spouse.

Does this happen in real life? Are husbands and wives being criminally charged with adultery? I am not aware of any recent case where someone was charged for adultery. But that doesn’t mean it’s not a crime.

Discuss Your Case With A Winston-Salem Divorce Attorney

Adultery can impact your divorce in a variety of ways. Even if you know how adultery can impact a few divorce-related issues, you should consult with an attorney to discuss the evidence you or the other person has and whether anything can be done to obtain more evidence of the adultery before it’s too late.

Bennett D. Rainey is a family law attorney in Winston Salem, North Carolina who regularly represents clients in divorce cases involving adultery. To speak with Bennett, please call his office at 336-768-1515 or submit an online contact form today.

Bennett has represented husbands and wives in Clemmons, Lexington, Thomasville, Kernersville, Yadkinville, and many other cities around the Triad.