Adultery
In an action for alimony and/or post separation support, the judge may consider fault by either of the parties committed during the marriage and up to the date of separation. The fault that is considered is termed marital misconduct.
Once such type of marital misconduct is illicit sexual behavior or commonly referred to as adultery. Any illicit sexual behavior (including sexual intercourse, oral sex or other deviate sexual acts as defined in NCGS 50-16.1A(3) a.) voluntarily engaged in by a spouse with someone other than the other spouse is marital misconduct. Illicit sexual behavior is a type of marital misconduct that the judge must consider in determining spousal support.
If the court determines that the dependent spouse participated in an act of illicit sexual behavior, during the marriage and prior to or on the date of separation, the court shall not award alimony.
If the court determines that the supporting spouse participated in an act of illicit sexual behavior, during the marriage and prior to or on the date of separation, the court shall order alimony to be paid to the dependent spouse.
If the court determines that both the supporting spouse and the dependent spouse each participated in an act of illicit sexual behavior, during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all the circumstances.
Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
