What is Adultery under North Carolina Law?
In order for a claim of ADF to succeed in North Carolina, the erring spouse must have had sexual intercourse with a person other than his or her spouse. This requirement can be satisfied either through direct testimony or circumstantial evidence. The NC Supreme Court has described the test for whether such evidence will suffice as follows: "[I]f the adultery is proved to the satisfaction of the jury by either a witness or witnesses disinterested, or by witnesses having a connection with the plaintiff or defendant in the case, it is deemed to be wholly immaterial how strong the suspicion may be, how slight the evidence may be, how inconsistent with circumstances the proof may be, how weakly the proof may be elicited from and how easily it may be broken down by cross-examination; for the credibility of witnesses is for the jury to determine."
Adultery is defined under North Carolina law as "the commission of sexual intercourse by a married person with a person other than the offender’s spouse." Clinard v. Cline, 299 N.C. 158, 166, 261 S.E.2d 865, 870 (1980); see also, Smith v. Philip Morris Companies, Inc., 335 N.C. 44, 422 S.E.2d 760 (1992). This definition has remained largely stable over the years. See e.g., Bave v. Bave, 3 N.C. App. 372, 164 S.E.2d 704 (1968); Paterson v. Paterson, 226 N.C. 711, 39 S.E.2d 604 (1946); Peacock v. Peacock, 210 N.C. 158, 185 S.E. 720 (1936). The Supreme Court in Clinard v. Clinard held that the act of adultery must be sufficiently proven to the satisfaction of the jury, either through direct testimony or circumstantial evidence. 299 N.C. at 166, 261 S.E.2d at 870; see also, Smith, 335 N.C. at 49, 422 S.E.2d at 762. Adultery may be established through testimonial or circumstantial evidence. Clinard, 299 N.C. 159, 261 S.E.2d at 870. Direct testimony through a witness other than the spouse accused of adultery, or direct testimony from the spouse accused, is sufficient to establish adultery . Id; Smith, 335 N.C. 49, 422 S.E.2d at 762. In the absence of direct testimony, circumstantial evidence may suffice. Id. This circumstantial evidence of adultery may include evidence of contact between the errant spouse and alleged paramour, including telephone and email communication, prior acts of marital infidelity, and incriminating statements made by the errant spouse. Id. Circumstantial evidence of adultery is not to be given as much weight as direct testimony, but it is still competent evidence of adultery. Id. Citing Clinard, the court in Smith stated: "Thus, we conclude that evidence of an extramarital affair is circumstantial evidence of adultery, and its probative value was not substantially outweighed by the danger of unfair prejudice. A jury may infer sexual intercourse was involved if evidence of direct contact was presented after the affair had commenced. Moreover, although evidence of prior acts of marital infidelity is relevant only to the extent it is probative of the issue involved, the testimony of [plaintiff’s witnesses] that [defendant] had engaged in acts of marital infidelity during the course of their five-year marriage was relevant to the issue whether [defendant’s] relationship with [paramour] had involved sexual intercourse." 335 N.C. at 50, 422 S.E.2d at 762; see also, McCormick on Evidence § 200 (Ronald J. Allen & Michael s. Graham eds., 5th ed. 1994) ([i]f the evidence of opportunity and illicit love is strong enough, that fact [of opportunity] may be deemed sufficient evidence of adultery, notwithstanding the lack of proof of the actual act"); Bave v. Bave, 3 N.C. App. 372, 376, 164 S.E.2d 704, 706 (1968) ("Such conduct on the part of defendant, together with other circumstances, convinces the Court that the evidence in the case is sufficient to sustain the finding of adultery.").
Adultery Grounds for Divorce
Adultery often plays a key role in divorce proceedings; however, it does not necessarily mean one spouse will have an advantage over the other in North Carolina. Your spouse’s adultery, or sexual misconduct, is irrelevant to many issues that are critical in property division, child custody and child support. When it comes to support for you, or custody of your children, your spouse’s adultery may actually count against you.
In North Carolina, adultery is grounds for divorce, so even if you have been separated for years, adultery is still relevant when you file your divorce claim. Cosmetic surgery like a face lift is not. We have defended divorces where the plaintiff (the person who filed the claim) had had affairs. But you can almost always use adultery to your advantage when you file a claim for divorce from bed and board, which is not available to defendants (the people being sued for divorce) but is available to plaintiffs.
In a divorce from bed and board claim, adultery is grounds for divorce. It shows the plaintiff must be awarded exclusive possession of the home. There are other conditions that must be met. But adultery is one of the requirements. The main disadvantage for the defendant is that the defendant cannot refile a claim for divorce on the grounds of adultery later on. Why would you want to? Because then you would have absolutely no rights in the property. So, if you think a divorce from bed and board is coming down the pipe, it should be filed. Do not worry what it will look like to the Judge. The Judge knows when someone files on the grounds of Adultery it is for the plaintiff to get possession of the house.
North Carolina judges are required by law to consider adultery when determining alimony. If you are considering seeking alimony, filing a claim for divorce from bed and board, or obtaining a legal separation, then it is in your best interest to refrain from committing adultery, even if you "know" you will never seek alimony. If your spouse commits adultery before you file for divorce, however, you may be able to seek alimony regardless of whether you would otherwise be eligible to receive it.
In North Carolina, a claim for child custody requires you file a claim against your spouse. This claim may be filed before filing for divorce, or after divorce, depending on your personal situation. Sometimes people file for divorce and wait for a period of time before they file for child custody. Until the judge enters a permanent child custody order, the temporary order will dictate your and your spouse’s rights to the children.
The judge does not care if it was you or your spouse who committed adultery. If two parents both disputed the other parent’s ability to have custody of the children, or even visitation with the children, the judge would focus on whether the adulterous behavior in the other family’s home would pose a risk of physical, emotional, mental or moral damage to the children. In addition to your spouse’s behavior, the judge will also consider your behavior and current circumstances before making a decision.
Child support is based on the parties’ respective incomes, as well as on the number of children the parties have. If you are concerned that your spouse’s children will have a negative effect on the children you share in common, taking that matter to court will not guarantee your children are protected from that relationship. Even if the court agrees with you on the subject, it does not mean your spouse must end the relationship or cease living with the other parent.
In addition, unless you are already divorced, it is possible for the court to require your spouse’ or the other party’s children continue living in the home. When the parties have children together, the children can remain in the home because a divorce cannot occur until the youngest child reaches age 18. The only time the court will strongly consider this as a factor in property division is when it appears one of the spouses intentionally brought children into the home to negatively impact the other party’s parental rights.
The fact your spouse committed adultery will not change your debts or assets. The above issues of alimony, child custody and child support are the only ones where adultery can have an impact on the legal outcome for you. Adultery cannot be used as a reason to prevent equitable distribution of property.
Proving Adultery in Divorce Court
The first thing that is necessary from a legal standpoint for any party seeking to litigate if his or her spouse committed adultery is that adultery has to be proven as a mechanical element of that party’s claims (and if this mechanical element is not proven, therefore other claims may not be granted without this mechanical element). Therefore, evidence is a critical factor in the ability to prove adultery.
Burden of Proof. The burden of proof to prove adultery in North Carolina courts in any action is the civil burden of preponderance of the evidence. Basically, what this means is that the party seeking to prove adultery has to show that the evidence is more likely than not showing adultery. This is much less than the criminal standard of evidence which is "beyond a reasonable doubt."
Evidence of Adultery. There are many different factors to consider when analyzing evidence to determine if adultery is more likely than not proven in Court. If an action is filed for divorce from bed and board for adultery, in order to have grounds for divorce from bed and board, your spouse has to voluntarily have sexual intercourse with a person other than you. In a divorce action, in order to prove adultery, your spouse has to voluntarily have sexual intercourse with a person other than you. In determining if adultery is more likely than not proven, the Courts will look at several different factors. In general, Courts will analyze the following:
Lawyers are often asked if a private investigator is necessary in proving adultery. Often, lawyers will hire private investigators to follow the opposing party around to obtain evidence. Many times private investigators are able to offer compelling evidence of adultery. However, private investigators are also very expensive. If the proof of adultery is already overwhelmingly clear, a private investigator may not be needed. However, once adultery is proven, other claims can be pursued in order to get a larger share of the marital estate. Thus, the private investigator may end up being a wise investment, but not in proving adultery.
Implications of Adultery Beyond the Divorce
In addition to its impact on alimony, adultery triggers additional legal consequences under North Carolina law. Most notably, adultery is one of the main grounds for bringing an alienation of affection lawsuit and a criminal conversation lawsuit in North Carolina.
Alienation of Affection Lawsuit:
Sometimes referred to as "home wrecking," a claim for alienation of affection accuses a third party of interfering with a marital relationship. In order to establish a claim for alienation of affection against the third party, a plaintiff must show that:
- There was a substantial love and affection between the plaintiff and his or her spouse, and the love and affection was destroyed;
- The loss of affection was caused by the wrongful and malicious acts of the third party; and
- Damages to the plaintiff resulted from the wrongful and malicious acts of the third party.
Criminal Conversation Lawsuit:
North Carolina recognizes tort lawsuits for "criminal conversation" ("enticing") against a party who has sexual intercourse with the spouse of another. For purposes of filing a criminal conversation lawsuit under North Carolina law , sexual intercourse is defined very broadly, and includes sexual intercourse by persons of the same or opposite sex (including penetration by any part of the human body or by any object). In contrast to an alienation of affection claim, there is no requirement that the marriage be in a state of actual or threatened rupture in order to prevail on a criminal conversation claim. A plaintiff establishes a claim for criminal conversation if the plaintiff shows that the defendant had sexual intercourse with the plaintiff’s spouse during their marriage.
Punitive damages are permitted for both alienation of affection and criminal conversation lawsuits in certain circumstances. Importantly, both suits are against the third party (not the spouse), and the defendant spouse is not required to pay damages if the plaintiff spouse brings one or both of these claims. However, sometimes the lawsuits are combined. If so, the spouse who committed adultery may have some limited defenses.
Adultery – Frequently Asked Questions
Doesn’t Adultery Mean I’ll Get Everything in the Settlement?
Not in North Carolina. In a North Carolina divorce, adultery does allow one spouse to receive a larger share of marital property, as well as possibly leading to alimony. However, the law does not simplify or dissolve all marital assets in favor of the adultery victim. Multiple factors are considered when determining how to divide marital property, such as length of marriage, tax burdens, economic and custodial impacts and separate versus community property.
It’s also important to remember that North Carolina is a "no fault" divorce state, which means marital misconduct does not play a role in the dissolution of the marriage.
Does Adultery Affect Our Children’s Custody?
Adultery can affect your children in several ways. The most common is through the living arrangements made by the custodial parent after the divorce resolution. If you or your soon-to-be ex are living with someone (or moving in with them) before the final divorce hearing, that person is considered a "paramour." Paramours are often disapproved of in custody and visitation decisions, especially if it seems they are motivated by money or otherwise harming the children emotionally or psychologically.
If you are an adulterous parent – that is, the one who had the affair – and your children were aware of your behavior or suffer emotional damage from your lack of discretion, courts may consider this in the length of the custody arrangement.
Will My Affair Impact My Spouse’s Ability to Get Alimony?
An affair on one spouse makes the other spouse entitled to alimony under North Carolina law, which states that the spouse seeking support must show that the other spouse committed "acts of illicit sexual intercourse." However, there are exceptions. If the marital relationship was one of separation, or if the spouse seeking alimony condoned or participated in the extramarital affair, it may impact the decision. Courts also consider other factors when agreeing to alimony. The alimony seeker must also show financial need.
Adultery in Divorce – Practical Tips
When it comes to adultery accusations, maintaining a level head is vital. Accusations of infidelity can lead to angry spouses and protracted legal battles. In many cases, adultery becomes the focus of the divorce proceedings rather than the resulting child support or asset division issues. Here are a few tips to help navigate adultery in the context of divorce: · Speak with a qualified legal professional as soon as possible. A lawyer with experience with adultery cases can help you find the right strategy for your situation. Give him or her as much information as possible about your situation and your spouse’s actions. This will help the attorney develop a legal strategy that protects your rights. · Take time to get your affairs in order before filing for divorce. Compile bank statements, credit card statements, and any other financial documents that detail your family’s assets and liabilities. If adultery is a concern, try to document instances of cheating, including phone records, text messages, or other evidence showing a pattern of infidelity. · Make arrangements to minimize shared assets and finances, if possible. Close any joint credit card accounts, close any joint checking or savings accounts , and roll over 401(k) funds. If you have joint property such as home equity lines of credit, pay off existing balances or set aside the funds to do so. To be safe, consider taking immediate action to remove an unfaithful spouse as a co-signor on accounts with a potential for theft or depletion. · Don’t take matters into your own hands. Even if you suspect your spouse is cheating, don’t confront them until you talk to an attorney or therapist. In many cases, the anticipation of being confronted with evidence of infidelity will force a faithful spouse to lie. If any type of harassment occurs, document it and report to the police as soon as possible. Document any video or photographic evidence of a cheating spouse with the date and location where the documentation was taken. · Don’t allow allegations of infidelity to cloud your decision-making. If there is a meaningful chance that your spouse has cheated, weigh the benefits of filing for divorce sooner rather than later. In North Carolina, adultery can impact spousal support. The sooner you file, the sooner a judge will grant you equitable distribution of marital property – including bank accounts, investment accounts and other assets – to prevent your spouse from depleting those assets.