In short, yes.

 Although our legislature has given the trial courts wide discretion in determining the amount, duration, and manner of payment of alimony, this discretion is limited when a spouse successfully pleads and proves that the other spouse has engaged in “illicit sexual behavior”, voluntary sexual or deviate sexual intercourse or sexual acts with someone other than their spouse, during the marriage and prior to or on the date of separation.

Generally, alimony shall be awarded if the court finds that:

(1) one spouse is a dependent spouse (i.e. one who is actually substantially dependent or substantially in need of maintenance and support from the other spouse)

(2) the other spouse is a supporting spouse ( i.e. the spouse upon whom the other is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support)

and

(3) and that an award of alimony is equitable after considering all relevant factors (NCGS §50-16.1A and 50-16.3A).

A spouse’s participation in illicit sexual behavior is one factor that affects an alimony award and it can be raised to support or to defend against a claim for alimony.

If the dependent spouse alleges and proves that the supporting spouse engaged in illicit sexual behavior during the marriage and prior to or on the date of separation, the court must enter an alimony award in favor of the dependent spouse. Conversely, if the supporting spouse alleges and proves that the dependent spouse engaged in such behavior during the marriage and prior to or on the date of separation as a defense to an alimony claim, the court must deny the dependent spouse’s claim for alimony.  These are nondiscretionary rules outlined in N.C.G.S §50-16.3A which the court must follow.

The court’s discretionary power to award or deny alimony are restored, however, when the court finds that both the dependent and supporting spouse participated in illicit sexual behavior.

If there are allegations of infidelity within your marriage and you would like to get more information on how it may affect a claim for alimony, please contact our office today at 1-877-351-1513 to schedule a consultation with one of our award winning attorneys.

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