Even when a spouse’s infidelity or more serious issues like emotional abuse or addiction lead to divorce, many people choose to keep those details private by filing for what’s commonly called a “no-fault” divorce. Here in North Carolina, a couple can do that once they have been separated for at least a year.
Is there an advantage to bringing a spouse’s issues to the attention of the court when seeking a divorce by seeking a fault-based divorce? For example, in North Carolina, a spouse can file for divorce citing “marital misconduct.” That covers everything from adultery (“illicit sexual behavior”) to “reckless spending” to abandonment to “cruelty.”
The most common type of marital misconduct is adultery. Can it make a difference in key divorce outcomes? It may affect the outcome of other issues surrounding a divorce but will not change the one year of separation requirement.
Alimony
The law states that in determining the amount and duration of alimony, a judge can consider the marital misconduct of either of the spouses. However, the law also states that the court can also consider whether an “act of illicit sexual behavior by either party…has been condoned by the other party” as well as whether both spouses engaged in adultery.
These considerations apply to “postseparation support” as well. This is the temporary spousal support ordered by the court until the “entry of an order awarding or denying alimony.”
Child custody
It’s less likely that a spouse’s infidelity can be used as a factor in determining how parents can share custody of their children. An unfaithful spouse can be a good parent.
If the other parent has evidence that their spouse’s infidelity caused them to neglect their children (and likely will continue to do so), fail to provide for them or put them in unsafe situations, those would certainly be considerations.
Fault-based divorces may take longer and are more expensive and acrimonious than no-fault divorces because of the more complex issues – particularly no-fault divorces where couples can work out the terms on their own, with their legal teams. However, it’s important to determine how best to proceed given a couple’s unique circumstances and to understand the law around various divorces isssues. Getting early and experienced legal guidance is key to working towards the best outcome.