So, you have a cheating spouse. Or maybe you’re the spouse having an affair? What does that mean for a divorce? It can be relevant for quite a few different things.
First, there are two types of divorce in North Carolina. The first and most common divorce is generally referred to as an absolute divorce. An absolute divorce can be granted one year and a day after the spouses separate. There is “no fault” required for an absolute divorce. Once an absolute divorce is granted, the spouses are no longer legally married. The second type of divorce is called divorce from bed and board. This divorce does require fault, meaning the filing spouse must show injury from the accused spouse’s actions based on an enumerated list in NCGS 50.7 (including adultery). Unlike an absolute divorce, divorce from bed and board does not require a separation period and does not legally end the marriage.
Secondly, adultery can influence child custody. No, the court will not grant sole custody based on adultery alone. Child custody and visitation is determined by the best interest of the child. Some courts will use evidence of cheating in making their decision. Let me be clear, adultery will not terminate a parent’s right to custody, but among other factors, it could help a judge decide on a custody schedule.
Third, alimony. This is where evidence of adultery is most important. If a cheating spouse is requesting alimony, that request must be denied. On the other hand, if the supporting spouse is cheating, the court must award alimony to the dependent spouse. If both spouses have committed adultery, the court can award alimony to the dependent spouse. Evidence of adultery will also play into the judge’s decision regarding the amount and duration of alimony.
Lastly, there are other civil actions, related to cheating, that can be brought by a spouse. These claims are criminal conversation and alienation of affection. Both actions allow a spouse to sue the cheating spouse’s paramour. However, only criminal conversation requires sexual intercourse. Alienation of affection can be used for any loss of affection in your marriage, even if there is not a sexual relationship.