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October 9, 2014 Blog

Preparing for Separation and Divorce: How to Catch a Cheating Spouse

One step to take in preparation for separation and divorce is to gather information that may be evidence of cheating conduct. This evidence may be helpful to you if you will be asking for post-separation support and/or alimony, or if you think you will have a post-separation support and/or alimony obligation.

In North Carolina, in order to be entitled to alimony, you must be a dependent spouse, which means that you are dependent on your spouse for your maintenance and support. In order to have an alimony obligation to your spouse, the court must determine that you are the supporting spouse, meaning your spouse is dependent upon you for his or her maintenance and support.

If you have an alimony obligation and your spouse has committed illicit sexual behavior prior to separation, you will not be required to pay alimony. Likewise, if your spouse has had sex with a third party prior to separation, you are entitled to receive alimony and may be entitled to a higher award of alimony. Thus, if you have not yet separated from your spouse and you suspect that he or she has been or is currently sexually involved with a third party, it is to your benefit as part of your separation and divorce preparation to collect evidence of the sexual activity prior to separating.

Under North Carolina law, your spouse’s sexual misconduct must be physical, not just emotional, and you must show that your spouse has committed acts of “illicit sexual behavior.” Illicit sexual behavior includes sexual intercourse, oral sex, anal sex, and “the penetration, however slight, by any object into the genital or anal opening of another person’s body except for accepted medical purposes.” The courts recognize that it is often difficult to prove that your spouse had sex with someone else. Therefore, if you show that your spouse is inclined towards an act of illicit sexual behavior, and that she or he had the opportunity to commit this act, you can satisfy the evidence of the marital misconduct.

One of the best sources to obtain evidence of marital misconduct, including “inclination and opportunity,” is a private investigator – a picture is worth a thousand words. A private investigator can conduct surveillance and follow your spouse to determine if he or she is sexually involved with a third party. When hiring a private investigator, you should consult with a divorce attorney to get a recommendation for a reputable and competent investigator with experience in domestic cases. A private investigator with experience in the domestic cases will have a better understanding of how to conduct the investigation and what to look for, which ultimately translates into a higher probability of success and lower total cost to the client.

Although it is tempting to confront your spouse immediately upon confirming your suspicions that he or she is unfaithful, it is to your advantage to allow the private investigator to complete the investigation prior to revealing to your spouse that you have knowledge of his or her infidelity. In addition, while it is appealing to conduct your own investigation into your spouse’s conduct it is crucial to follow your investigator’s recommendations to ensure that your efforts do not interfere with his or her investigation.

Another good source of information to collect about a cheating spouse in your pre-separation and divorce preparation is emails. If your spouse uses a family computer to which you know the password, you may, under certain circumstances, access his or her emails. Be aware that it is illegal to obtain information by installing a keylogger, keystroke device, or spyware program on your spouse’s computer, or any other means of intercepting emails, such as through the use of a Trojan virus; if you do, this evidence will not be admissible in court, and your spouse may have a claim against you for wiretapping. You can also have an IT professional image the hard drive of your spouse’s computer to obtain data. Don’t attempt to do this yourself as the reliability of the procedure and data may be compromised and held inadmissible if used in court. If you have any questions about accessing or using your spouse’s emails, or if you wish to get a recommendation for a computer expert, consult with a divorce attorney.

A final source of information to consider when preparing for separation and divorce is telephone records. If you and your spouse share a cell phone account, you can get a copy of the records either online or by requesting a copy from your cell phone provider. With regard to text messages, although many cell phone service providers are not able to provide statements showing the actual text of the message, they will be able to give you a log of the number, time and date of the text messages. A high volume of text messages at odd hours of the day is not definitive evidence that your spouse is cheating on you, but, combined with other evidence, may help you show your spouse was inclined to be sexually involved with a third party before you separated.

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Carrie Tortora is an attorney in North Carolina and a Board-Certified Family Law Specialist with a background in accounting with nearly a decade of experience providing legal representation and support to divorcing individuals and their families. Carrie’s unique skill set provides expertise in complex financial cases, such as valuing and dividing business interests, analyzing property distribution, and financial support issues. If you have a question about this article, you can email Carrie at

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