In Brief: Marital Misconduct in a North Carolina Divorce


A woman punching a man with boxing gloves

“Marital misconduct” as a legal term includes the nine things listed in sub-section 3 here. These include maliciously locking a spouse out of the house, committing crimes leading to jail time, cheating, and extraordinary indignities among others. Only those nine things defined as misconduct can impact an alimony claim. However, battery, defamation, and cheating can lead to other, separate legal claims.

Misconduct and Alimony

If the spouse asking for alimony is guilty of misconduct, they can be barred from receiving alimony at all. If the spouse paying alimony is guilty of misconduct, they can be ordered to pay substantially more alimony than they otherwise would. If both spouses are guilty of misconduct, then it is up to the judge to decide what impact that has on alimony. Marital misconduct can be proven by circumstantial evidence that shows it is “more likely than not.”

The miscounduct has to occur during the marriage and prior to separation. For example, once a spouse moves out of the marital home (the separation), both spouses are free to have sex with whomever they like. However, evidence of events occurring after separation can be used to prove what was going on during the marriage. For example, if a spouse moves in with a steady boyfriend or girlfriend directly from the marital home, this can be used as evidence that they had a relationship prior to the spouse moving out.

Suing the Paramour

North Carolina is one of the few states that still allow people to use someone that slept with their spouse without their permission. These claims are called “alienation of affection” and “criminal conversation.” These claims are often asked about but rarely seriously pursued. The main reason is that the plaintiff has to prove the person that slept with their spouse is the cause of their spouse losing affection for them. The spouse themselves usually will convincingly testify the opposite – that losing affection for their spouse is what caused them to find someone else.


This is another claim that is often asked about but rarely seriously pursued. The legal definition sounds like anyone that leaves their spouse without a good-enough justification can be sued. This causes spouses to stress that if they leave the marital home, they will be sued. In practice, abandonment claims involves special situations. This can include leaving a home-maker with the children and no money for food and water. Or if a spouse is hit by a car, calls to ask for a ride to the hospital, and the spouse chooses that moment to abandon them.

Other Claims

Sometimes in a divorce other legal claims are pursued that are not strictly divorce claims. These claims may go to superior court rather than divorce court. Assault, battery, and defamation are some of the most common. Assault is a threat of imminent harm, such as threatening someone with a bat or raising a hand. Battery involves actually hitting someone or some other non-consensual offensive touching. These two words are often used interchangeably by the public. Defamation is when someone says something irresponsible, false, and defamatory that causes damages.

More Information

This post offers a brief summary of marital misconduct. You can download an in-depth guide to alimony and marital misconduct here. Attorney David King can be reached at You can schedule a consultation here. We also have step-by-step guides to negotiations or litigation that provide a more step-by-step how-to.