What does an affair mean to your divorce in NC?
Marital misconduct comes in many forms, but the form that most frequently leads to divorce is adultery. So, how does adultery affect your rights in a divorce setting? Perhaps, not as much as you may think – however, there are still important factors to consider when consulting with a competent family lawyer if you find yourself the victim of an affair.
Property (equitable) distribution is not affected by adultery at all.
Judges in North Carolina will refuse to consider marital misconduct (other than economic waste) when valuing or distributing a divorcing couple’s assets. That said, a good family lawyer will apply pressure and use the affair as leverage when negotiating the allocation of property.
Alimony MUST be considered when the supporting spouse has committed adultery.
Likewise, when a dependent spouse has committed adultery, a court has grounds to eliminate or lessen alimony. This makes perfect sense, right? There should be a penal aspect applied to one’s extramarital indiscretions, don’t you think? Well, in practice, adultery is much less of a factor when contemplating alimony than it was years ago. Today, judges are on record as giving adultery short shrift when calculating spousal support. You should be aware of the legal standard, but in reality, an affair leads to little difference in alimony. At the end of the day, alimony will be based on the dependent spouse’s reasonable needs, and the supporting spouse’s ability to pay. Just because one or another committed adultery – does not change this basic equation. Adultery or other marital misconduct will always be considered and can be used as leverage during settlement negotiations, but in practice the end result is not greatly affected in most cases.
Adultery WILL NOT be considered in child custody / child support matters
– except that a court would consider a parent cohabitating with a lover as a potentially negative factor when examining the best interests of the children. This trend is starting to change some, but historically, courts have frowned on a situation that places the children into a completely new and strange circumstance of observing a parent entertaining overnight guests.
Criminal Conversation and Alienation of Affection – these two rather infamous claims are unique to North Carolina – as our state is just one of a handful that still permit a spouse to sue the third party (not your spouse but the lover) who committed adultery or intervened in the marriage. Criminal conversation – is a fancy lawyer way of saying “adultery.” Alienation of affection relates to a third party (who could also be a non-lover like a friend or mother-in-law) who destroys the affection or love within the marriage. The former claim is easier to prove through the use of private investigators, text messaging, and others’ testimony. However, in practice, unless the third party has considerable wealth, property, or other valuable assets – such a suit can be futile. Even with great facts and a will to see justice realized – if you cannot collect on a judgment, or the judgment is subject to being discharged in bankruptcy – you will waste thousands of dollars and undergo a heart wrenching litigation process for little return value. If the paramour does have assets or property to reach – then a criminal conversation action is certainly an option if you are prepared to face this difficult situation head on in a public environment.
Speaking of a public environment
– perhaps the greatest benefit (or most significant effect that adultery has on divorce settlements) – is leverage during the negotiation period. Those who commit adultery usually do not want to air all of their dirty laundry in open court or have court documents publically filed alleging detailed acts of marital misconduct. To that end, if you are the victim of your spouse’s affair – in the least your lawyer can use this fact to your advantage during the settlement discussions. Perhaps, you can get a better property distribution than you normally would – even though that would not be possible in court. Maybe you can get a more favorable alimony or child support payment than would be normal – just for your promise to keep the matter private and out of the public spotlight.
If you find yourself the victim of an affair, or have suspicions that an affair is on the brink of destroying your marriage, do not hesitate to consult with a lawyer – like the smart honest legal advisors at Lake Norman Law Firm. A lawyer can help you navigate this situation, and provide other resources to you – whether your goal is to save the marriage, procure proper counseling, or hire investigators to strengthen your case. Divorce is hard and even harder when an affair intervenes – you will need a trusted family lawyer that has your back and understands how to apply leverage and make the right strategic decisions when dealing with adultery.
