Most spouses who decide to end their marriage opt for a “no-fault” divorce. Even if one spouse has done something that would qualify as grounds for divorce, couples would often prefer not to bring the matter into court where it could become public.
A no-fault divorce has different requirements depending on the state. Here in North Carolina, a couple must have been separated for at least a year, and at least one party must have resided in the state for a minimum of six months.
Can it benefit a spouse to file a grounds-based divorce if they have grounds? For example, what if a spouse has been unfaithful (which falls under “marital misconduct” according to North Carolina law)?
Can misconduct help a non-offending spouse get more alimony?
If a couple can’t decide on alimony on their own, a judge will be called on to do it. According to the law, one of the factors they can consider is whether there was marital misconduct. This can work in favor of the person whose spouse was unfaithful – whether they would be the paying or receiving spouse – in terms of whether they have to pay alimony and, if so, how much. Financial factors such as income and earning potential, however, are more important.
Can marital misconduct affect parental rights?
Infidelity is less likely to affect child custody decisions. Unless the spouse’s infidelity caused them to neglect their child or otherwise put their child in unsafe or unhealthy situations, it likely won’t be a factor in determining how custody is split.
Of course, it’s typically best for everyone when divorcing couples can negotiate the terms of their divorce themselves. In some cases, someone who has been unfaithful will agree to their spouse’s terms out of guilt or simply to get the divorce over with – especially if they have a new partner. As long as the terms aren’t egregiously unfair to one spouse or not in the best interests of a child, a judge will typically approve them.
While marital misconduct is certainly not unusual, each divorce is unique. That’s why it’s important to get experienced legal guidance as early as possible.