Marital Misconduct is used to describe actions that occurred during a marriage that may later influence a court's decision regarding post separation support, alimony and divorce from bed and board.  However, it is not necessary to prove any type of marital misconduct in order for a dependent spouse to be awarded post separation support or alimony.

Marital misconduct includes physical or financial abandonment, turning the other spouse out of the marital residence,  indignities, excessive drinking or drug use, waste of money, adultery, cruel or barbarous treatment and illicit sexual behavior. 

The Court views "illicit sexual behavior" differently than the other factors listed above. "Illicit sexual behavior" is any sexual misconduct, including adultery as well as any form of intercourse with a person who is not the spouse, whether heterosexual or homosexual.  This is the only form of marital misconduct that has clear-cut consequences in the decision to award post separation support and/or alimony. For illicit sexual behavior to be considered by the court the acts must have occurred before the married couple separated.

The North Carolina law addresses three possible scenarios regarding illicit sexual behavior :

• If the dependent spouse is the only one proven to have engaged in illicit sexual behavior, then no alimony can be awarded and the case is over;

• If only the supporting spouse is the only one who has engaged in illicit sexual behavior, then the court must award alimony to the dependent spouse; and

• If both parties have engaged in illicit sexual behavior, then the court has the discretion to grant or deny alimony based on all the circumstances.

Both spouses have the right to a jury trial to prove whether the other spouse has committed "marital misconduct." Once the judge or jury has decided the questions of "marital misconduct," the judge will award or deny permanent alimony based upon the factors previously outlined. The court will deny alimony completely if the dependent spouse has engaged in any acts of illicit sexual behavior on or before the date of separation and the supporting spouse has not.

It is possible for the Court to find that the marital misconduct, including illicit sexual behavior, has been condoned or forgiven by the other spouse. If after acts of marital misconduct occur, the spouses resume the marital relationship or have sexual relations, the Court may rule that the marital misconduct has been forgiven.  Forgiven acts of marital misconduct may not be used to support or defend against a claim for alimony. For the court to find the injured spouse has forgiven the offending spouse, the offending spouse must treat the other spouse kindly following the resumption of the marriage relationship and not commit any further acts of misconduct.

Read North Carolina law regarding Marital Misconduct