How can Infidelity Impact my Divorce?

Finding yourself in a difficult place in your marriage can be extremely difficult from an emotional perspective, particularly if you have been experiencing those difficulties for some time.  Depending upon the nature of your relationship and your troubles, it is entirely understandable that you might feel lonely, frustrated, and without true companionship.  No one wants to feel that way, and trying to get through the day while struggling with those feelings can understandably be stressful, draining, and discouraging. It is in these situations, where one or both spouses are struggling with emotional emptiness, that some find themselves more susceptible to becoming involved in affairs, or conversely, discover that their spouse is having an affair.

While affairs are ill-advised for any number of reasons, in North Carolina, they have very real and significant consequences from a legal perspective.  In North Carolina, adultery is actually a misdemeanor offense under the criminal code, though it is highly unlikely that a prosecutor would bring criminal charges for an affair. What is far more likely, however, is that adultery, if proven, could significantly impact many aspects of a divorce case – not only from a financial perspective, but also with respect to child custody and other matters of great importance to the parties, not to mention the fact that the spouse harmed by the affair could potentially bring a lawsuit for significant damages under North Carolina law. 

How Evidence of an Affair Can Impact Your Divorce Case

Ultimately, evidence of adultery can impact your divorce case in a variety of ways.  Some of the most significant include:

• Postseparation support and Alimony: In North Carolina, to qualify for postseparation support (think of this as “temporary alimony”), there must be a financially supporting spouse and a financially dependent spouse. Evidence of an affair can be a determination the judge can consider in determining whether to award postseparation support to the dependent spouse. If the dependent spouse cheated, the judge may decide not to award postseparation support; if, on the other hand, the supporting spouse cheated, the judge may enter an order for postseparation support. As for alimony, if the dependent spouse was involved in an extramarital affair, they will be barred from receiving an alimony award; if, on the other hand, the support spouse was involved in an extramarital affair, the dependent spouse may be guaranteed an award of alimony. In a nutshell, involvement in an affair can have a tremendous impact on whether or not alimony will be awarded. 

 

• Calling into question your fitness as a parent: Another significant consequence of adultery is that it can be used to call into question the cheating spouse’s fitness as a parent.  One spouse may argue to the court that it is not in the best interest of the child(ren) to be with the adulterous spouse, and it is certainly not unheard of for courts to give this factor significant weight in a custody determination.  Having an affair is simply not worth that risk.

 

• Impacting spousal support amounts and property distribution: In circumstances where alimony is a factor, the spouse entitled to alimony may receive a higher award as a penalty against the cheating spouse.  Moreover, if it can be definitively established that the cheating spouse used marital assets (such as money in a joint bank account or a credit card in the name of both spouses) to support the affair in any way, then the judge can decide to take the non-cheating spouse’s losses into account when distributing property.

 

• Opening the door to potential lawsuits: Under North Carolina law, parties who engage in affairs open the door for the spouse harmed by the affair to file a claim against the third party who engaged in the affair with the cheating spouse.  Juries have in fact awarded significant damages in such cases, and the possibility of such a lawsuit should be considered very seriously.

If you need to speak with an experienced divorce attorney, please contact Adkins Law to arrange a consultation. 

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