Sex during the separation period can potentially be a big problem for a dependent spouse who plans to ask for alimony. Marital misconduct can be an important factor in the outcome of alimony claims in North Carolina. While having a sexual relationship after the separation does not constitute marital misconduct, a judge might consider it to be corroborating evidence that an affair was going on before the date of separation. In an alimony case, the dependent spouse is the one who receives alimony, and the supporting spouse is the one who pays alimony. In North Carolina, a dependent spouse who would otherwise be entitled to alimony is completely barred from receiving alimony if he/she had an affair while the parties were living together. Likewise, the supporting spouse may enter a sexual relationship after the date of separation without affecting his/her duty to pay alimony, but the Court could consider it as corroborative evidence of an affair before the separation. This use of post-separation sex to corroborate an allegation of marital misconduct can particularly become an issue when each party is trying to prove that the other had an affair for alimony purposes.
Under North Carolina law, alimony and post-separation support that have been awarded to a dependent spouse terminate when the dependent spouse remarries or engages in cohabitation. North Carolina General Statute § 50-16.9(b) says that “[c]ohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” So a sexual relationship that the Court might see as evidence of cohabitation can lead to the early termination of alimony and post-separation support. If alimony and post-separation support are an issue in your case, talk candidly with your lawyer about protecting your claims if you are involved in a sexual relationship.
“Heart Balm” Lawsuits
If you have lived in North Carolina for long, you might have heard that we are one of a handful of states that allow a spouse to sue the person with whom their spouse cheated. These actions are called “heart balm” actions, presumably because they are supposed to help heal the heart of the jilted spouse. The first cause of action is called Alienation of Affection, in which the person who files the suit must prove that a third party caused his/her spouse to lose affection for them. Sex does not have to be part of this claim, but the courts have ruled that sex before the date of separation can help prove alienation of affection. Just as with alimony, sex that occurs after the parties have separated can be used to corroborate that there was already a sexual relationship before the separation.
Of the two heart balm torts, Criminal Conversation is an easier claim to prove than alienation of affection, because the jilted spouse who files suit only has to prove that extramarital sex occurred and that he/she was legally married when their spouse was having sex with the third party. Once again, post-separation sex can be used to corroborate conduct that occurred while the couple was still living together. The bottom line is that you should know that engaging in sex while you are separated from your spouse could place your sexual partner in jeopardy of a lawsuit.