In North Carolina, infidelity is one of the nine acts of marital misconduct defined under N.C.G.S. § 50-16.1A listed as “illicit sexual behavior.” North Carolina defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4) [criminal sexual offenses], voluntarily engaged in by a spouse with someone other than the other spouse.”
What effect does cheating have on my marriage and separation? Cheating may serve to either guarantee or bar alimony for a spouse. In North Carolina, to have a claim for alimony, there must be a dependent / supporting relationship. This means that one spouse must be a dependent spouse, meaning they are “…actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” The other spouse must be a supporting spouse, meaning they are “... a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.”
Without a dependent / supporting relationship, a court cannot make an award of alimony. The burden of proving dependency is on the spouse asserting the claim for alimony. It is important to note that even if a spouse is dependent, that dependent spouse is not entitled to an award of alimony if the other spouse does not have the ability to pay. A dependent wife, for example, would likely not be entitled to an award of alimony from a husband in bankruptcy whom does not have the ability to pay any amount of alimony at the time of the alimony hearing. See Bodie v. Bodie, 221 N.C. App. 29, 727 S.E. 2d 11 (2012).
A finding of adultery on behalf of a party asserting a claim for alimony renders a dependency determination moot. Thus, a dependent spouse who has cheated is barred from receiving alimony; the court will not make a determination of whether the spouse is actually dependent.
An actually substantially dependent spouse means that the spouse seeking an award of alimony must actually be dependent upon the other spouse to maintain the standard of living to which that spouse became accustomed to during the last several years before separation. The spouse must actually be unable to maintain the accustomed standard of living from his or her own means.
Examples of cases where a spouse has not been found to be dependent:
Examples of cases where a spouse has been found to be dependent:
The Supreme Court in North Carolina has held, however, that just because one spouse is dependent, it does not automatically mean that the other spouse is support. See Williams. Also see Barrett v. Barrett, 140 N.C. App. 369, 536 S.E. 2d 642 (2000). A surplus of income over expenses is sufficient in and of itself to warrant a determination that a spouse is supporting. See Bodie.
If a supporting spouse is determined to have cheated, the marital misconduct must have occurred during the marriage and prior to the date of separation. A court may consider incidents of post-separation marital misconduct only to the extent that it may corroborate evidence supporting other evidence that the marital misconduct occurred during the period of marriage and before the date of separation. The date of separation is the date that the parties actually began to live separate and apart with the intention of at least one party that the physical separation be permanent. See Romulus v. Romulus, 215 N.C. App. 495, 715 S.E. 2d 308 (2011). Parties must not only physically separate with the intent of at least one party to remain separate and apart, they must physically separate in a manner that indicates the cessation of cohabitation. A husband, for example, that came and went during the period of separation but continued to receive mail and maintain belongings at the marital residence and that, while he occasionally slept at his office, he returned home to do chores and take the children to activities was determined to not have separated from his wife. The parties were determined to not have legally separated. See Romulus.
What counts as an act of illicit sexual behavior? As stated above, North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined by N.C.G.S. § 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse. In determining whether to award alimony, any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
A spouse can prove that the other spouse engaged in illicit sexual behavior in a number of ways. Admission on behalf of the offending party is a very common manner of establishing proof. The term “sexual relations”, however, is not part of the statutory definition for illicit sexual behavior. In one North Carolina case, an admission by one spouse to the other spouse that he engaged in sexual relations did not establish illicit sexual behavior. See Romulus.
To establish adultery, a party must show that the offending party had both the opportunity and inclination to engage in sexual intercourse. Wallace v. Wallace, 70 N.C. App. 458, 319 S.E. 2d 680 (1984). This means that without direct proof, a party may establish that sexual intercourse occurred by showing that they wanted to engage in sexual intercourse with another party, and had the actual opportunity to do so. An example would be a spouse who has sent text messages and made phone calls with another party, and has been observed inside the other party’s residence for a period of time. There may not be direct evidence, pictures or video of the sexual intercourse, but circumstantial evidence would show that they had the opportunity and inclination to engaged in sexual intercourse.
What does this mean? In a nutshell, to have a claim for alimony, there must be a dependent / supporting relationship. One party must make substantially more income than the other party and the dependent party must rely on that income to maintain their lifestyle. If the dependent party has had an affair, they are barred from alimony; if a supporting party has had an affair, the dependent party is essentially guaranteed alimony; and if both parties have cheated, it is in the discretion of the court as to whether any award of alimony will be granted.
If you need to speak with a family law attorney regarding spousal support and alimony, please contact Adkins Law to arrange a consultation.
Imagine this—your spouse is in the shower and you notice they’re getting a lot of text messages. You flip over the phone, and see their inbox is full of explicit texts and pictures going back and forth between your spouse and a coworker. You’ve had your suspicion of infidelity, but now you have proof! What do you do next?
Before you do anything else, you should contact Adkins Law and set up a consult about your situation. In North Carolina, marital misconduct is a big deal. It can be used as the basis for a fault-based divorce, in determining alimony, and in so called heart balm torts like criminal conversation or alienation of affection suits. Unfortunately, those incriminating texts may not be enough to prove infidelity on their own.
“But what do you mean this isn’t enough?!”, you’re surely asking. This is a frustrating side effect of new technology coming into the courts. While these text messages may be very explicit and constitute cheating in your mind, absent proof that there was inclination and opportunity to have actual, physical sexual conduct, it simply is not enough.
This is not the end, however. These text messages may be very helpful in bolstering your claim of infidelity. For example, if you know that your spouse and their coworker went on a “work trip” together and shared a room, you can likely make the case that they had both inclination and opportunity to engage in a sexual relationship, and those text messages only make it more likely that they did. Text messages may also detail an encounter that occurred between the parties that can be used to show that a sexual relationship is ongoing or to show that third party driving a wedge into the marriage.
Remember, text messages, emails, phone records and the like can all be used as supporting evidence, but it is important that they are collected correctly and authenticated to be used in court.
If you are interested in pursuing a divorce based on infidelity or have any questions about how to correctly preserve those text messages, contact Adkins Law today to set up a consult.
By: Sarah Bennett
While I have been known to waste my time with even some of Bravo’s most questionable programming (I’m looking at you, Relationshep), on Monday nights, I really live for Vanderpump Rules (“VPR” for all the insiders). Last week, Bravo aired the 101st episode of VPR: “Sex, Lies and Audiotape.” The gist of the episode was that our anti-hero, Jax, recently confessed to his girlfriend, Brittany, that he slept with Faith, another co-worker. While Jax contends that his episode of unfaithfulness (pun intended) was a one-time slip-up and that he truly loves Brittany, Faith claims otherwise. In fact, Faith shares with the rest of their friends that she possesses an audio recording of Jax stating that he’s no longer sexually attracted to Brittany and that he never intends to marry her (Jax and Brittany’s path towards the altar – and Brittany’s desire to expedite that journey – is a major topic on both VPR and its spin-off, Vanderpump Rules: Jax and Brittany Take Kentucky, which I have also shamelessly watched).
If you are still reading this post, you may be wondering what my personal interest in the questionably authentic relationships of servers at a Southern Californian restaurant has to do with family law in North Carolina. The answer: wiretapping laws! Just about weekly, Chris or I consult with a client who wants to know whether a secret recording he or she made of their spouse (or some other individual) can be used in court. As with many questions about family law, the answer is, “it depends.”
For purposes of state wiretapping laws, North Carolina is a one-party consent state. What that means, generally, is that it does not violate state law for you to record an in-person or telephone conversation between yourself and another person (so long as everybody is in North Carolina when the recording is made). On the other hand, it would violate our state’s laws for you to secretly record a conversation between your spouse and a third person when neither your spouse nor that third person know that they are being recorded. So let’s think about it in terms of VPR: Faith, unbeknownst to Jax, recorded a private conversation between Jax and herself. If this had all occurred in North Carolina, Faith would face no state criminal or civil liability and the court would likely admit the recording as evidence if Faith and Jax were later involved in a lawsuit. However, let’s imagine if the situation were a little different; for instance, let’s say that Brittany, suspicious that Jax may be cheating, wanted to know what Faith and Jax were saying and doing behind Brittany’s back. So, Brittany decided to “bug” Jax for the purpose of secretly recording Faith and Jax’s private conversations without either Jax or Faith knowing about the recording or giving Brittany permission to do so. If all of these actions occurred in North Carolina, this would be problematic for Brittany – not only would Brittany’s recording be inadmissible in any kind of legal proceeding, but she could also be facing civil liability or even felony wiretapping charges.
This “bugging” hypothetical is akin to when a person secretly records their spouse’s conversation with a possible paramour or a child. Absent one of the recorded parties giving their consent to the recording, generally, this is not permissible in North Carolina (there is, however, a good faith exception known as vicarious consent in certain circumstances when one is recording a child). While I am not admitted to practice law in California, a cursory Google searched revealed that California, where VPR is filmed, is a two-party consent state. That means that in California and any of the other eleven two-party consent states, a person who wants to record a conversation needs the permission of all parties to the conversation prior to making the recording. I would imagine this could potentially mean legal trouble for Faith if she did not let Jax know that she was recording him; this might also provide some insight into why Bravo opted not to air the contents of the actual recording, but instead filmed the Bravolebrities’ reactions to hearing the recording.
Returning to the law in our state, there are some additional exceptions to North Carolina wiretapping laws. For instance, cameras can be used in public places (such as streets, hotel lobbies, parks, etc.) to record the area. This is not considered illegal wiretapping because an individual has no reasonable expectation of privacy in these public areas. Obviously, this does not apply to “upskirt” cameras or other criminal recording methods – but there can be another blog post (and probably another reality TV show) in which we can examine those issues.
Outside of the family law context, there are additional, legitimate scenarios where one may want to record a conversation, such as a performance review at work or an encounter with a police officer. Clearly, the laws in North Carolina regarding wiretapping are complicated. I strongly suggest that anybody thinking of making an audio or video recording read the governing North Carolina law (N.C.G.S. § 15A-287) and consult an experienced attorney for advice on the issue. In the meantime, happy reality television-watching!
Commonality of Modifying Alimony
After a court grants alimony (either temporary or permanent), it may later be modified by the court or terminated completely depending on the circumstance. There must be a substantial change in circumstances in order for court to modify an existing agreement. Courts have wide discretion in how they define situations that constitute a substantial change in circumstances to warrant a change in alimony. It is not common for a court to modify an existing alimony award. North Carolina submits to the partnership theory of marriage, where both partners have an equal obligation to provide financial support to each other during marriage. This theory extends to post-separation spousal support.
Spousal Support: Payor and Recipient
During the process of modifying alimony agreements, an individual is either the payor or the recipient of spousal support. These roles are determined objectively depending on which partner was financially superior in the marriage. The payor is typically the partner who will be giving money to the recipient or dependent partner. The amount of spousal support depends specific factors, such factors include: the duration of the marriage, the role of each spouse, and the age of the partners.
Modification of Spousal Support
Either party has the ability to initiate modification of an award. The party who moves for a modification of alimony has the responsibility of showing a substantial change in circumstances that warrant change in spousal support. Typically, the party will either move for either upward modification or downward modification.
In North Carolina, if your spouse cheats on you, you may bring a lawsuit against the paramour for alienation of affection or criminal conversation. This means you may sue the person that slept with your spouse or alienated your relationship. Take a look at this video for more information on heart balm torts in North Carolina.