In North Carolina, alimony can be paid in a lump sum or in a continuing, monthly basis. There is no formula for determining the amount and duration of alimony; that determination is up to the discretion of the judge. In order to award alimony, the judge must find that (1) there is a supporting spouse, (2) there is a dependent spouse, (3) the dependent spouse needs alimony, and (4) the supporting souse has the ability to pay alimony. Alimony may be negotiated in an out-of-court settlement. Illicit sexual behavior by either spouse during the marriage and prior to the date of separation may affect alimony.
If a supporting spouse has committed an act of illicit sexual behavior, the dependent spouse is entitled to alimony. If the dependent spouse has committed an act of illicit sexual behavior prior to the parties’ separation, he or she will be barred from receiving alimony. If both spouses have committed acts of illicit sexual behavior during the marriage prior to a separation, then a judge must decide if the dependent spouse is entitled to receive alimony.
North Carolina law defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts as defined in North Carolina criminal law, voluntarily engaged in by a spouse with someone other than the other spouse.”
Sexual acts which meet the definition of illicit sexual behavior include:
In order to prove that your spouse committed an act of illicit sexual behavior or adultery, you will need to obtain admissible evidence of such conduct. In most cases, this conduct is proved by circumstantial evidence. Circumstantial evidence of illicit sexual behavior is typically obtained by a private investigator who conducts a surveillance of the spouse who is acting suspiciously. Adultery is presumed if you can prove that both persons had the “inclination” and “opportunity” to commit the act.
Examples of “inclination” include the following:
In order to prove opportunity you must show your spouse and a third party spent time alone together in a location where there was an opportunity for sexual relations, such as a hotel or empty beach house.
Cohabitation after separation may affect your right to receive or your obligation to pay alimony. Under North Carolina law, if the court determines that a dependent spouse receiving alimony pursuant to a Court order is cohabiting, the court is statutorily required to terminate future alimony payments.
The alimony statute defines cohabitation as:
Whether someone is cohabiting is determined based on the facts of each case. Courts consider a variety of factors, including:
If you believe your right or obligation to receive or pay alimony may be impacted due to issues of cohabitation, you should contact an attorney to learn how the law may apply to the particular facts of your case.