Written by Alexis Gadzinski
First, let’s start with some background. Alimony is financial support given to a financially dependent spouse or former spouse by a supporting spouse. However, under North Carolina General Statutes Chapter 50 Divorce and Alimony § 50-16.3A(a), if that dependent spouse committed an act of illicit sexual behavior with someone other than their spouse during the marriage, the court would not award the dependent spouse alimony. Further, if the supporting spouse participated in an act of illicit sexual behavior with someone other than their spouse during the marriage, then the court must order that alimony be paid to the dependent spouse. § 50-16.3A(a). But what evidence does either spouse need to prove illicit sexual behavior or adultery and essentially bar or guarantee an alimony claim?

To establish adultery for alimony purposes, you need to prove two things: “opportunity and an inclination to engage in sexual intercourse.” Wallace v. Wallace, 319 S.E.2d 680, 683 (N.C. Ct. App. 1984). What does that look like? Well, as the typical lawyer would say, it depends. Let’s look at some past cases. The testimony of a private investigator who witnessed and photographed a husband kissing another woman during the parties’ marriage and saw the husband’s car parked overnight at a hotel next to another woman’s car, along with the wife’s testimony that the husband began to repeat specific suspicious behaviors during the marriage that he had exhibited previously when he had a prior affair was all sufficient evidence of the husband’s inclination and opportunity to commit adultery. Rea v. Rea, 822 S.E.2d 426, 430 (N.C. Ct. App. 2018). However, evidence that a husband was just “alone with another woman on a few occasions in her office and once or twice at home” wasn’t enough in the Court of Appeal’s eyes to establish opportunity and inclination. Horney v. Horney, 289 S.E.2d 868, 869 (N.C. Ct. App. 1982).

Remember, you need to prove both opportunity and inclination, not just one. A wife failed to establish adultery in an action for alimony against her husband because while the testimony of a “private detective that the husband had meetings with woman, sometimes lasting until morning,” supported an inference that the husband had an opportunity to engage in adulterous conduct on multiple occasions, it “allowed no reasonable inference of inclination on the husband’s part to engage in such conduct.” Wallace, 319 S.E.2d at 683.

An experienced family law attorney can help you navigate all the ins and outs of Alimony and develop a solution that is best for you. At Marcellino & Tyson, PLLC, we know each situation is different, and we frame your case to achieve the best results for your situation. Contact us at (704) 919-1519 for a consultation to discuss your options.