In most cases, both spouses have played a role in bringing about the end of the marriage. However, when one spouse cheats, abandons the other, abuses alcohol or drugs, treats the other cruelly or engages in financial misconduct, that spouse may be considered more at fault than the other. This is called “marital misconduct.”
If your spouse committed marital misconduct, you might wonder if you will receive more money in the divorce than you would have otherwise. In North Carolina, you will not be granted additional property during the division of property process. However, the court is allowed to consider marital misconduct when considering whether alimony should be awarded.
Under North Carolina law, courts are not allowed to consider marital misconduct during property division, except for financial misconduct that occurs after the separation. Instead, the court will consider what is “equitable,” which basically means fair. North Carolina does presume that a 50/50 division of marital property is generally fair, but you can argue for an unequal distribution in some cases. Talk to your divorce attorney about when and how to do so.
Alimony is different. Our statute specifically allows the court to consider marital misconduct when awarding alimony and in determining the amount and duration of the alimony award. This includes all types of marital misconduct that occurred before you were separated, but there are special rules regarding infidelity.
- If your spouse cheated during the marriage, your spouse is generally not entitled to alimony.
- If your spouse cheated and you are the “dependent” spouse (the one who makes less money), the court will order that you be paid alimony.
- This is true as long as you did not “condone” the cheating, and as long as you did not also cheat.
Other factors to be considered when awarding alimony include:
- Your relative earnings and earning capacities
- Your ages and physical, mental and emotional conditions
- The length of the marriage
- Whether one spouse contributed to the other’s education or increased earning power
- Whether your earning capacity will be affected by caring for a minor child
- The standard of living established during the marriage
- The relative education of each spouse and how much time will be needed for the dependent spouse to train for and find suitable employment
- Your relative assets and liabilities
- Any property either spouse brought to the marriage
- A spouse’s contributions as a homemaker
- Your relative needs
- The tax ramifications of the alimony award
- The effect of the division of your assets and debts
- Any other factor the court finds just and proper
You should work with your attorney to determine if you are entitled to alimony and to make a strong argument for what that order should entail. It’s important to have a lawyer who will go the extra mile to get you a fair settlement.