Adultery Can Impact Your Divorce Case. Here's How to Prove Adultery in NC

If you are in the process of filing for divorce because your spouse was having an affair, you might be wondering whether that adultery will impact your divorce settlement and, if so, how you can prove adultery.

Is Adultery a Crime in North Carolina?

North Carolina criminal law defines adultery as when any man and woman, not being married to each other “lewdly and lasciviously associate, bed and cohabit together.” Under North Carolina criminal law, adultery is a misdemeanor.

Although adultery is considered a misdemeanor criminal offense under North Carolina law, the primary reason that many spouses want to prove adultery does not have to do with criminal charges. To be sure, it is unlikely that a prosecutor would bring charges in a case of adultery, but adultery can significantly impact many aspects of a divorce or child custody case.

This leads to the topic of criminal conversation. Criminal conversation requires solid proof that your spouse engaged in sexual relations with the third-party defendant. Most commonly, evidence of adultery is obtained by hiring a private investigator to photograph or videotape the affair.

If you have questions about proving adultery and obtaining spousal support, contact our experienced divorce lawyers in Raleigh today to discuss your situation.

Why Would I Need to Prove Adultery?

Evidence of adultery can impact your divorce case or your child custody matter in a wide variety of ways:

  • Adultery can call into question a party’s fitness as a parent and whether living with that cheating spouse would be in the best interests of the child.
  • Proof that one spouse cheated can also impact property distribution. For instance, if the cheating spouse used marital assets (such as money held in a joint bank account or credit cards in both spouses’ names) to support the affair in any way, then the judge can decide to take into account the non-cheating spouse’s losses and distribute property appropriately.
  • Proof of adultery can allow a spouse who was the victim of the extramarital affair to file a claim for “alienation of affection” and “criminal conversation,” which sometimes are known as a “heart balm” torts. An alienation of affection claim enables Spouse A to file a claim against a third party for that person’s responsibility in causing Spouse A to lose the affection of Spouse B. As with criminal conversation, you must file suit for alienation of affection within three years from the date the last wrongful act occurred. Unlike criminal conversation, the innocent spouse/plaintiff doesn’t have to prove that actual sexual intercourse took place. The plaintiff only has to prove that the defendant’s actions caused alienation and led to the end of the marriage. This civil action can even be brought against a mother-in-law, for example, who advised the husband or wife to leave the marriage.” on the content

How Does Adultery Impact Child Support, Property Division, and Alimony?

As we mentioned, proof of adultery can impact a divorce case on many different levels. To better understand, let’s take a look at the common issues that come up in a divorce in North Carolina, and the ways that adultery can impact each:

  • Child custody and/or visitation: Adultery can impact child custody or visitation issues in a few ways. For instance, given that judges have discretion in making rulings about child custody and visitation, a judge may determine that the adultery reflects poorly on the parent’s ethical choices and, as a result, reflects upon the parent’s fitness. As such, the judge may decide that the parent involved in an extramarital affair should not have custody of the child. In addition, adultery can impact child support. While North Carolina has specific guidelines that courts use to determine child support awards (guidelines based on the parents’ incomes), those guidelines can shift if one parent is living with and sharing expenses with another adult (such as a person with whom that parent was having an extramarital affair).
  • Spousal support: Under North Carolina law, divorce cases that were heard prior to 1995 required that the spouse seeking support, often known as alimony, had to prove that the payor spouse was guilty of some sort of marital fault. Proof of adultery could count. While cases after that date have not required evidence of marital misconduct in order for a payee spouse to receive alimony, evidence that a payor spouse was guilty of “illicit sexual behavior” during the marriage (and before the date of separation) can mean that the guilty spouse will be required to pay alimony. In the event that you are the payee spouse (the one who receives spousal support payments) and you move in with another party with whom you were having an affair, your spousal support payments may be lowered or even determined to be inappropriate.
  • Divorce settlements and property division: Sometimes evidence of adultery can also be used to force the hand of the guilty party, so to speak, when it comes to divorce negotiations with your spouse. You should not expect that a judge will penalize a spouse who committed adultery during property division proceedings. However, if the cheating spouse’s extramarital affair impacted the financial health of your marriage or your family, then those facts can be taken into account as the judge makes a decision about property division. Remember, although North Carolina is an “equitable distribution” state, equitable does not necessarily mean “equal.”
  • Alimony: Although adultery is not a ground for divorce, the court will consider this type of marital misconduct when awarding alimony. If the court finds that the paying spouse committed adultery, the court must award the supported spouse alimony. However, if the court finds that the supported spouse or both spouses committed adultery, the court will use its discretion to award or deny alimony. It is also important to note that the court will not consider any marital misconduct if the acts by one spouse are condoned by the other. This means if one spouse knows about the adultery, and forgives the cheating spouse, the adultery will not be considered in an alimony case.

What Evidence Do I Need to Prove Adultery?

Obtaining proof of adultery can be complicated, but in the age of the Internet, it may be a bit easier than in the past. In brief, many family law matters concerning adultery include evidence that has come from the cheating party’s social media sites. Many people do not realize it, but even if you alter your privacy settings on Facebook or Instagram, for example, the information you post still can be discoverable by the other side. In other words, anything you post should be considered public information.

What kinds of uploads or posts may serve as proof of adultery? Evidence from social media sites may include:

  • Photos of the cheating spouse with the other man/woman (on vacation, out to dinner, or at the person’s home)
  • Compromising photos of the cheating spouse with the other person
  • Images of gifts purchased for the other man/woman
  • Posts citing affection for another person

Remember that cellphones also store a significant amount of personal information that can be obtained through the discovery process. Emails, texts, and other proof of adultery kept on a phone can be used in court.

Seek Advice from a North Carolina Divorce Attorney

If it is clear that your spouse had an extramarital affair that caused the breakup of your marriage, you likely are thinking about how to prove your partner cheated. Generally speaking, proving adultery can be complicated, and it is important to work with an experienced North Carolina divorce lawyer who can help gather evidence in your case.

Contact Charles R. Ullman & Associates today to learn more about how we can assist you.