Often, a divorcing or separated party wishes to understand the impact that an affair could have on an award of alimony or postseparation support. (For a basic article on these concepts, click HERE).
If a dependent spouse engages in an “illicit sexual act” during the marriage and prior to the date of separation, then he or she will likely lose the right to collect alimony.
Similarly, if a supporting spouse engages in an “illicit sexual act” during the marriage but prior to the date of separation, then he or she shall pay alimony.
If both spouses “did the deed” so to speak, the court will merely take that into account along with all of the other factors that can be considered.
But what is an “illicit sexual act?” This means “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined [by law], voluntarily engaged in by a spouse with someone other than the other spouse.” It only takes one such act, but the longer and more disturbing the pattern of the affair, the greater effect the affair is likely to have on the amount and duration of an alimony award.
What if we kept working on our marriage even after the act was discovered? In North Carolina divorces, the courts can consider whether one of the parties “condoned” the affair. If a party condones an illicit act, then that act should not be considered by the court. At least one Court of Appeals case has ruled that because the parties agreed not to separate and entered into marital counseling after an affair was discovered, the wife’s illicit affair was not a bar to her receiving alimony. However, the disrespect she showed for the marriage resulted in a shorter duration and amount of alimony payable to her.
Any separating husband or wife with these questions should speak to counsel without hesitation. These issues must be managed delicately and strategically in order to preserve your rights and minimize your liabilities arising out of the marriage.
Amanda Mason is a partner with Mason and Mason, Attorneys at Law. For more information about this firm, click HERE. This article is intended for informational purposes only, and not as legal advice. No attorney-client relationship is created by review of this article.