Marital Misconduct Explained

One recurring theme in both post-separation support and alimony is the idea of marital misconduct. As defined by statute, marital misconduct means any of the following acts committed by either of the spouses during the marriage, and on or before the date of separation:

  • Illicit sexual behavior
  • Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought
  • Abandonment of the other spouse
  • Malicious turning out of doors of the other spouse
  • Cruel or barbarous treatment endangering the life of the other spouse
  • Indignities rendering the condition of the other spouse intolerable and life burdensome
  • Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets
  • Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome
  • Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome

These factors can be considered to either support the award of post-separation support or alimony if the marital misconduct was committed by the supporting spouse, or to deny or reduce the amount of post-separation support or alimony that might otherwise have been awarded, if the marital misconduct was committed by the dependent spouse.

At Scott Law Group, PLLC, our team of attorneys and staff can help you better understand the details of marital misconduct and how they apply to your case. We are a local, North Carolina practice and routinely work with people facing a wide variety of divorce and other family law issues across the state.

What Qualifies As Marital Misconduct?

The court treats illicit sexual behavior differently than the other factors listed above. Illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, cunnilingus, fellatio, anilingus or anal intercourse, voluntarily engaged in by a spouse with someone other than the other spouse. If the dependent spouse has engaged in illicit sexual behavior on or before the date of separation, the court will deny post-separation support or permanent alimony completely unless the supporting spouse also has engaged in illicit sexual behavior on or before the date of separation. If both parties have engaged in illicit sexual behavior on or before the date of separation, the court has the discretion to award or deny post-separation support or alimony after considering all the circumstances.

If only the supporting spouse has engaged in illicit sexual behavior on or before the date of separation, the court must order payment of alimony. The idea of illicit sexual behavior is one of the most important changes of the new alimony statutes that became effective on October 1, 1995. Prior to October 1, 1995, adultery automatically barred a dependent spouse from receiving alimony, regardless of whether the supporting spouse had also committed adultery, and regardless of whether the adultery occurred before or after the date of separation. Under the new statutes, only acts of illicit sexual behavior committed on or before the date of separation are marital misconduct. The commission of an act of illicit sexual behavior by the dependent spouse may bar an award of post-separation support and alimony if the supporting spouse has not committed an act of illicit sexual behavior.

Options When Faced With Marital Misconduct

Either spouse has a right to a jury trial to decide whether the other spouse has committed marital misconduct. Once the judge or jury has decided on the question of marital misconduct, the judge will award or deny permanent alimony based upon the factors discussed above. Again the judge may reduce the amount awarded if the dependent spouse has engaged in marital misconduct. The court will deny alimony completely if the dependent spouse has engaged in an act of illicit sexual behavior on or before the date of separation and the supporting spouse has not.

If after an incident of marital misconduct occurs, the spouses resume the marital relationship or have sexual relations, a court may rule that the marital misconduct has been forgiven. If the court finds that the marital misconduct has been forgiven, or condoned, the act of marital misconduct may not be used to support or defend against a claim for alimony. The forgiveness is conditioned upon the offending spouse treating the other spouse kindly following the resumption of the marriage relationship and not later repeating the same or similar behavior.

Normally, the judge will not set permanent alimony for trial until all marital property has been equitably divided either by an agreement between the parties or by an order of equitable distribution entered by the court. In those instances where alimony is set before property is divided, the judge may review whether the dependent spouse is still dependent after the property is divided.

The right of the dependent spouse to receive alimony, and the obligation of the supporting spouse to pay alimony, terminates upon the death of either spouse, the dependent spouse's remarriage, or if the dependent spouse continuously and habitually cohabits with a person of the same or opposite sex on a regular basis in a marriage-like relationship. Periodic alimony payments may also end by the terms of a court order specifying that the payments are to end on a certain date. Either party may make a motion to increase or decrease an alimony amount at any time based upon a change of circumstances.

When the parties file separate tax returns, alimony payments will be considered taxable income to the dependent spouse and a deduction to the supporting spouse. All spousal support matters should be analyzed for tax consequences by your CPA or tax adviser before you sign a separation agreement or go to court. We are not qualified as tax advisers. To be tax deductible, support payments must be paid under the terms of a written separation agreement or court order.

Due to the short time the new alimony laws have been in effect, there is no body of appellate cases interpreting the new laws. Therefore, although the previous discussion is a general overview of the new law, it is difficult to predict how the new alimony laws will be applied in any particular factual situation.

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