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All About Adultery in North Carolina (Part 1 of 2)

 
By Amy A. Edwards
 
Merriam Webster defines adulterate as a verb, an act “to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.” North Carolina alimony laws don’t call it adultery. Instead, adultery as used in alimony cases is a form of marital misconduct called “illicit sexual behavior.” The definition is “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in NC Gen. Stat. §14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” NC Gen. Stat. §50-16.3A.
 
People have argued about which acts between the spouse and third party meet the definition of illicit sexual behavior. In 2011, a wife unsuccessfully argued that her behavior didn’t meet the standard of illicit sexual behavior because the man she had been with wasn’t able to complete the act they had started but were unable to finish. Romulus v. Romulus (2011). The Romulus case gives an exhaustive list of definitions (starting on page 47) of various acts.
 
Adultery and Alimony
 
In North Carolina, divorce is a “no fault” process based on a full year of separation between a husband and wife. However, we strongly cling to fault in our alimony laws. For many reasons, alimony can be awarded based only on finances, meaning incomes and reasonable living expenses. But if the supporting spouse commits adultery, he or she automatically has to pay alimony. The reverse is also true. The dependent spouse automatically loses alimony if he or she cheats. Other types of marital fault are only factors the judge must consider, and they don’t demand a particular result as adultery does. If both spouses have cheated, the judge then denies or awards alimony in his or her discretion “after consideration of all of the circumstances.” NC Gen. Stat. §50-16.3A.
 
How Do You Prove Adultery?
 
Adultery is almost always a circumstantial case. After all, most spouses aren’t advertising their infidelity. It is rarely proven by direct evidence. Therefore, our law resorts to a standard called the “inclination and opportunity doctrine.” Owens v. Owens, 28 NC App 713 (1976). This means the spouse alleging adultery must prove two things. First, was there an opportunity for the spouse and third party to be together in privacy?  Second, if they had the opportunity to be together, were they inclined (likely) to have sex?
 
Like any other disputed fact, witnesses may testify about the opportunity, and/or whether the spouse and third party were inclined to cheat. Other evidence might include a secret credit card account statement reflecting hotel charges or discovered e-mails/texts between the lovers. Family law cases are bench trials, cases heard by a judge. One of the few exceptions to that rule is marital misconduct, including illicit sexual behavior. A jury can render a verdict on whether the spouse committed marital misconduct. NC Gen. Stat. §50-16.3A.
 
Uh Oh . . . Did You Condone It?
 
One defense to alimony is condonation.  As the name suggests, it means all is forgiven . . . and it gives a bit of a clean slate to the cheating spouse. If the innocent spouse discovers an affair and continues to stay in the marriage, the law gives the cheating spouse a second chance. After the second chance is given, if the parties separate for some other reason later, the court  can consider the affair in deciding how long alimony should be paid and in what amount. In other words, someone doesn’t automatically win or lose an alimony case because of the affair. How does the law define “staying in the marriage” and condoning the cheater? In short, the court assumes condonation has occurred if the spouses voluntarily have intercourse after knowing about the affair. Malloy v. Malloy, 33 NC App. 56 (1977). One side effect of condonation is that the spouse who would’ve automatically won the alimony case is essentially punished for trying to make the marriage work.
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