Alimony and Adultery: Cheaters Never Prosper

October 1, 2014 | Alimony

Since I’ve already written about how the Courts figure out an alimony amount, let’s take a look at one of those questions I get asked by a lot of clients: what happens to alimony if there was adultery?

The short answer is if you were a supporting spouse who committed adultery, you pay alimony. If you were the dependent spouse and you committed adultery, then you get no alimony. It is the one bit of marital misconduct that has been written into the law as a hard and fast rule where alimony awards are concerned. Nothing else gets the same treatment, not even domestic violence.

So much for the short answer. The devil is always in the details with these things so here are the details on what adultery is, what you need to show in order to convince a Court of adultery, and the two things that can wipe the slate clean (mostly) when there has been adultery by one spouse or the other.

First, what counts as adultery? There are several things designated by the North Carolina statutes as “Marital Misconduct.” They include most of what you would expect: abandonment, locking a spouse out of the house, domestic violence, alcoholism and drug addiction, etc. Each one of these things is listed in the alimony statutes and is considered a factor when a Court is deciding whether to award alimony. The alimony statute, if you are really curious, is N.C.G.S. 50-16.3A. The list where the different types of marital misconduct is defined is found in N.C.G.S. 50-16.1A. One of the factors is listed as “illicit sexual conduct” which is defined as, basically, any sexual act. The alimony statute points to the sexual assault definition (N.C.G.s. 14-27.1) for an exhaustive list of things that constitute sexual conduct. For a non-technical definition, you can simply include anything sexual beyond kissing and hugging that two consenting adults can do with each other. There doesn’t need to be intercourse for adultery, but there does need to be some sort of contact that most people would take their clothes off for. Any sexual contact will be considered adultery.

Now that we have a definition, the larger issue is always “What do I have to do to prove it?” You don’t necessarily need a tearful (and recorded) confession by the guilty spouse. You don’t need naked pictures or an admission by one of the parties involved in the sexual contact, although it certainly makes things easier if you do have one of these bits of evidence. All you really need to show is (1) opportunity and (2) inclination.

Opportunity is exactly what it sounds like. Did these people have the opportunity to have sex with one another? That opportunity can be any circumstance that allowed the two accused adulterers to be alone with one another for a period of time long enough to lead a reasonable person to believe there was an opportunity for sex. The best evidence is always the overnight visit, but shorter periods of time are certainly enough for a tryst–an hour or two when they are both at a hotel or in a home alone together is certainly opportunity enough.

Opportunity, however, is nothing without inclination. As our own Courts have stated in the past, the mere fact that two people of opposite gender were alone together is not enough to conclude there is adultery. Friendships and business relationships that have people in close proximity to one another are not going to be discouraged or penalized by the law. There has to be some evidence of a romantic inclination between the parties. That can be emails and text messages that are explicit enough to show there is a romantic involvement, or it can be something that leads to obvious inferences. Examples of the inferred romantic inclination are things like phone records showing dozens of late-night calls, credit card records showing two people together at the same restaurants or bars, or literally anything that you would think showed two people with more than a friendly relationship.

The evidence used to show opportunity and inclination can be just about anything–phone and credit card records, witnesses testifying, emails and text messages, surveillance by a PI, photos, video, audio recordings–just as long as the evidence actually proves opportunity and inclination to the Court’s satisfaction.

So, there’s adultery. Now is there anything that can fix the mess? There are actually two defenses to an allegation of adultery in an alimony case. The first is called “Condonation” and the second is “Connivance.” Condonation is when the cheating spouse is forgiven by the innocent spouse. It is a pretty common defense–many people try to move past an affair and salvage a relationship. Connivance is when the “innocent” spouse actually participates in and encourages the cheating spouse to have sex outside the marriage. I most often see connivance when a couple are, for lack of a better term, swingers. Let’s go back to our poor divorcing couple Ann and Bert, to see how this works.

Ann is the supporting spouse and Bert is suing her for alimony. Bert accuses her of adultery in his alimony claim. Ann replies that Bert condoned her affair. At the trial, Bert puts on evidence that Ann had an affair with Cecil. He found emails one night, and then found some naked photos on her phone that she had received from Cecil. She admitted to the affair when confronted by Bert. If Bert says he’s ending the marriage when he discovers the affair, then it is pretty straightforward. Ann committed adultery and she’s going to pay Bert some alimony as a supporting spouse. However, it didn’t end there. Bert, being the sentimental fellow that he is, told Ann he wanted to save their marriage. He demanded she break off with Cecil and go to marriage counseling. A year later, Bert decided that he just couldn’t make it work with Ann and he wanted an end to the marriage. While he can still make a claim for alimony, the adultery was something that he condoned so it is not going to be something he can use to have the Court automatically award him alimony as a dependent spouse.

Now, let’s say that Ann just couldn’t give Cecil up. He was too exciting and good looking. Bert is an insurance underwriter and Cecil is a hang-gliding instructor with a glorious mane of hair. Poor Bert didn’t have a chance. He finds more romantic emails between Ann and Cecil six months after he said he forgave her and she agreed to end the affair. Ann’s return to Cecil’s embrace puts an end to the condonation and Bert can once again claim adultery as marital misconduct in an alimony trial.

Poor Bert. At least he’s going to get some alimony to help him get back on his feet.