Elements of Divorcing a Cheating Spouse in NC

Written by Jonathan Breeden

March 5, 2023

Divorce can be difficult, especially when adultery is involved. Your emotions may be downright confusing, and you may not know where to turn. Don’t let the situation get the best of you. Remain strong and seek the help you need to move forward.

How Does Adultery Affect Divorce in NC?

North Carolina is a “no-fault” divorce state. That means you aren’t required to have a reason for a divorce. You can simply state that the marriage is broken and you want to end it.

However, adultery is grounds for divorce from bed and board, similar to a legal separation in North Carolina, under North Carolina General Statutes (NCGS) 50-7. A cheating spouse is more likely to be ordered to pay spousal support or alimony.

Grounds for Divorce

Since North Carolina is a no-fault divorce state, you don’t have to have grounds for divorce. A no-fault divorce is considered an “absolute” divorce and ends the marriage. The only requirements for a no-fault divorce are:

  • At least one spouse must have lived in the state for at least six months
  • The spouses must have lived separate and apart for at least one year

However, you can assert grounds for divorce in a legal separation, which include:

  • Adultery (also called infidelity)
  • Abandonment of the family
  • Cruelty or barbarous treatment endangering the life of the other spouse
  • Excessive or addictive drug and/or alcohol use
  • Indignities rendering life intolerable or burdensome

Additionally, incurable insanity may be used as grounds for an absolute divorce in certain circumstances under NCGS 50-5.1.

“Bed and Board” Divorces

Bed and board divorce is a legal separation that does not actually terminate the marriage. You can still get a court order for child support, alimony, child custody, visitation, spousal support, and property division.

A divorce from bed and board often leads to a dissolution of the marriage because it will provide for the legal separation of spouses for at least one year, which is a requirement of absolute divorce.

Adultery Impacts Divorce Outcomes

The lies involved with adultery can significantly impact the outcome of the divorce. A judge may make many divorce-related decisions by considering a spouse’s infidelity.

Infidelity Can Determine Alimony

Under NCGS 50-16.3A, if a judge finds the supporting spouse (the spouse who makes the most money) had an illicit sexual relationship during the marriage and before the separation date, then they may order alimony to the dependent spouse. It’s essential to firmly establish that your spouse had a sexual relationship with someone else while you were married.

If the judge finds that the dependent spouse, the spouse seeking alimony, had an illicit sexual relationship during the marriage, then the judge almost certainly will not award alimony.

Cheating Rarely Impacts Property Distribution

The judge usually doesn’t consider infidelity for dividing property. Unless, however, an affair impacted the marital finances. If your spouse used commingled money or racked up credit card debt in order to conduct the extramarital relationship, this could change how the judge divides your assets and debts.

Cheating Could Affect Child Custody

The judge decides custody based on the best interests of your children. An affair doesn’t usually warrant a loss of custody. But a parent’s extramarital relationship might impact what is best for the children.

The judge might believe the parent who had an affair isn’t as stable or responsible as the other parent. They might think the parent’s continued relationship with the third party isn’t appropriate for the children to be around. These factors could influence one parent receiving a more significant amount of custody than the other.

What Can I Do If I Suspect Adultery in My Marriage?

You should take some steps if you suspect your spouse is cheating on you.

Think Before You Act

If you think your spouse has been unfaithful, remain calm. Consider your feelings and your relationship. Do you want to continue with the marriage or file for divorce? If you feel the marriage is over, contact an attorney right away.

Calmly Confront Your Spouse

Talk with your spouse about the affair if you hope to stay married. Set aside time to sit down with your spouse and raise your concerns. Tell them why you have your suspicions. Ask for a truthful response. Your spouse will either admit or deny the affair. You must decide whether to trust your spouse or seek proof of infidelity.

If you decide to divorce your spouse, don’t bother with approaching them about the situation. Contact an attorney to gather the necessary proof that your spouse has cheated so you can get the alimony or divorce you need.

Don’t Take Matters into Your Own Hands

There are acceptable ways to gather evidence of cheating, but there are things you shouldn’t do. Don’t try to hack into your spouse’s phone, email, or social media accounts. Even if you’re successful, you probably obtained the information unlawfully unless you already knew the passwords. You may not be able to use that information in court. Also, don’t follow your spouse, track them on GPS, or unexpectedly confront them in public. This will only cause unnecessary conflict that could turn physical.

Consider Hiring a Private Detective

If you want direct proof, hire a private investigator (PI) licensed by the North Carolina Department of Public Safety. To get a PI license, the person must be at least 18 years old, have a high school diploma or equivalent, be a US citizen or permanent resident, and be of good moral character. They must have at least three years of experience conducting investigations through the military, law enforcement, government agencies, contract security companies, or another private person or business. They must also obtain an associate’s license and train under a licensed PI.

A PI will conduct photo and video surveillance and legally obtain evidence of an affair. The PI also can testify in court regarding how they got the proof. Since they’re not a relative, friend, or colleague of you or your spouse, they’re an unbiased source of information.

Using a PI is much safer than trying to gather the information yourself, and the data obtained can be used in court.

Contact Breeden Law for Help in Your Case

If you suspect your spouse is cheating on you or want to divorce your partner, contact attorney Jonathan Breeden right away. He will immediately begin obtaining the necessary information to support your case. Call Breeden Law Office today at (919) 661-4970 or use our online contact form to reach out.


Divorce In North Carolina: What You Need To Know

A book by Jonathan Breeden