In North Carolina, spouses may have a legal duty to pay alimony – that is, financially support their ex-spouse after the date of separation.
Alimony may be paid in a lump sum or on a monthly basis. There is no specific formula for determining the amount and duration of alimony, but if your case is in court, the judge will consider a number of factors in deciding how much alimony should be awarded and, if monthly alimony is ordered, how long payments will continue. For a spouse to qualify for alimony, a judge must find that (1) one spouse is the “supporting spouse,” (2) the other spouse is the “dependent spouse,” (3) the dependent spouse needs financial support, and (4) the supporting spouse has the ability to pay alimony.
One factor a judge will consider is whether a spouse had sexual relations with someone other than his or her spouse before the date of separation (legal terminology: “illicit sexual behavior,” click the link below to learn more). The amount and duration of alimony also may be negotiated in an out-of-court settlement agreement.
If a dependent spouse has engaged in illicit sexual behavior with a third party before separating from her spouse, the law bars her from receiving alimony. If a supporting spouse has had sexual relations with a third party before separating, the law mandates that he pay alimony, so long as he has the financial ability to do so. If both spouses have had sexual relations with other people during the marriage, the judge will decide whether the dependent spouse is entitled to receive alimony.
It may be difficult to prove a spouse engaged in “illicit sexual behavior.” North Carolina courts recognize this point, and will allow evidence of “inclination and opportunity” to prove that a spouse engaged in sexual relations with a third party before separating from her spouse. How would a spouse’s “inclination and opportunity” be shown?
Evidence of “Opportunity” may include eye witnesses, documents, recordings and other documentation that shows the spouse and third party spent time alone together in a location where they had the opportunity to engage in sexual relations, such as a hotel or empty residence.
“Cohabitation” – a divorced or separated spouse living with a third party – may cut off a dependent spouse’s right to receive alimony, and terminate a supporting spouse’s obligation to pay alimony. Claims of cohabitation are considered on a case-by-case basis.
If you believe cohabitation may affect your right to receive alimony, or your obligation to pay alimony, contact an attorney to learn how the law may apply to the particular facts of your case.
In our Podcast, Jaime Davis discusses the potential impact adultery can have on a family law case, as well as potential claims a spouse may have against the third party for alienation of affection and criminal conversation.