Infidelity, adultery, or any other version of cheating in a marriage will sometimes be the reason that couples divorce. Yet, in North Carolina, infidelity can have even farther reaching implications in the divorce proceedings, including with respect to child custody and spousal support. Here's what you need to know.
1) Infidelity can affect the question of the cheating spouse's fitness to be a parent. The question, of course, is whether it would be in the best interest of the children of the marriage to be with a cheating spouse who may have well caused the divorce in the first place. At the very least, the cheating spouse's personal ethics may be questioned which alone could give the judge enough concern to answer “no.” If that is the answer, then the cheating spouse may not be allowed to have primary custody of the children and their visitation rights may be curtailed. This also means that the cheating spouse may be on the hook for a greater amount of child support, since they would not be the custodial parent.
2) Infidelity can affect spousal support. While North Carolina no longer requires the spouse seeking support to prove that there has been marital fault, spousal support may still be awarded if the other spouse proves there was sex outside of the marriage. This spousal support would be in addition to child support. It is also important to note that if the dependent spouse (who would otherwise be eligible for spousal support) was the cheating spouse, they will not be eligible for alimony.
3) Infidelity can affect property divisions and settlements. Adultery alone will probably not be used against the cheating spouse in property division negotiations. However, if that spouse's adultery adversely impacted the financial situation of the family or the marriage, then the judge may factor this in when making a determination. North Carolina's “equitable” distribution rule for divorce proceedings allows the judge to weigh that as a factor when determining what distribution is fair, not necessarily “equal.”
4) The non-cheating spouse may have a cause of action against the cheating spouse's partner. North Carolina is one of just two states that recognizes the right of the aggrieved spouse to file a suit for “alienation of affection” against the partner of the cheating spouse. In this suit, the non-cheating spouse sues the cheating spouse's partner and alleges that that person caused the non-cheating spouse to lose the affection of the cheating spouse.
If there is actual proof that sexual intercourse between the cheating spouse and their partner took place during the marriage, the non-cheating spouse may also sue for “criminal conversation.” Despite the name, criminal conversation is actually a civil case. If successful, the non-cheating spouse may be entitled to compensatory damages for loss of consortium, mental anguish, loss of support, or humiliation, to name a few. These would be paid by the cheating spouse's partner.
If you are facing a divorce with infidelity as a factor, please contact our firm. We provide compassionate, sensitive, and supportive legal representation through this difficult time.