Cheating, Abandonment, Abuse – What does it all mean when it comes to Alimony?
Alimony can be a confusing legal topic as the idea of financial support for a dependent spouse has a complex and lengthy history. The application of Alimony in divorce has changed over time especially considering the changing roles of parties in a marriage, the expenses and income-earning abilities of parties, and the ever-increasing ways to capture evidence of cheating, abandonment, and abuse.
In North Carolina in particular, there are no guidelines or a calculator that the Court uses when determining an Alimony award. Rather the Court will look at several factors, including the following:
1. The Standard of Living established during the marriage
2. Necessary Expenses for both spouses
3. Employment status of one or both spouses
4. The income-earning ability of both spouses
5. The duration of the marriage
6. *Marital Misconduct
7. And various other factors listed in North Carolina General Statute §50-16.3A
Aside from these statutory factors, it is important to point out that a Judge has significant discretion in Alimony matters. Some Judges look at the concept of Alimony as a monetary cure to ensure no one ends up homeless or in poverty. In contrast, some Judges will view the concept of alimony as punitive especially if the supporting spouse cheated, was abusive or violent, or was simply a jerk. Additionally, every Court or Judge will have their own “go-by’s” or “unwritten rules.” For example: a rule of thumb seen in some North Carolina Courts is that the duration of Alimony will be approximately half the duration of the marriage, but no statute or caselaw requires this duration calculation.
If all of the above is not confusing enough, let’s delve a little deeper into the definition of “Marital Misconduct.” Marital Misconduct is a factor that the Court considers when deciding whether to award Alimony, and also in determining the amount and duration of the Alimony award. Pursuant to North Carolina General Statute §50-16.1A, Marital Misconduct includes the following:
Illicit Sexual Behavior (including acts by a Cheating Spouse)
If committed by dependent spouse, proof of illicit sexual behavior by a dependent spouse is an ABSOLUTE bar to Alimony. In Romulus v. Romulus, the North Carolina Court of Appeals was requested to review a trial court ruling in which a dependent Wife’s claim for Alimony was denied due to her “illicit sexual behavior.” The trial court also found that the supporting Husband had committed acts of domestic violence against Wife (including intentionally breaking her right arm and child abuse to their children). Although domestic violence is a form of marital misconduct that a Court can consider in Alimony determinations, the trial court was statutorily prevented from awarding Alimony due to this ABSOLUTE bar.
If committed by supporting spouse, proof of illicit sexual behavior by a supporting spouse is an ABSOLUTE entitlement of Alimony for the dependent spouse.
How does a Court determine if Illicit Sexual Behavior has been committed? It comes down to Inclination and Opportunity – meaning even in the absence of recordings or clear evidence of cheating, a Court can still find that Illicit Sexual Behavior has occurred based on other forms of evidence reflecting inclination and opportunity.
Abandonment
No, this does not include just leaving the house. Rather, Abandonment is defined as ending the marriage without just cause/justification, without the consent of the other spouse and without the intent to renew it. A related form includes Constructive Abandonment, which is withdrawing from the marriage prior to moving out of the marital home without just cause/justification. Finally there is “Malicious Turning Out of Doors,” which refers to the situation when one spouse has been emotionally and/or physically abandoned within the marital relationship.
How can you show that abandonment did not occur or is not otherwise applicable in your situation? Provide a justification for leaving; pretty much any justification will do. You can also show that the other spouse consented or also wanted the separation or end of the marriage.
Domestic Violence
Although the terms “domestic violence” or “intimate partner violence” do not appear in the Alimony statutes in North Carolina, other listed forms of marital misconduct are reflective of various acts of domestic violence: involuntary separation as a result of criminal acts; 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 income 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.
An Alimony claim is difficult to pursue. An Alimony determination by the Court is unpredictable. Before making the decision to pursue alimony, it is crucial to understand the legal complexities of Alimony and to find an advocate that will help you navigate the legal system.
If you or somebody you know is navigating an Alimony claim or is in need for Spousal Support, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
