When a judge is deciding on custody issues in North Carolina, the standard he or she must consider is always the “best interests of the child.” It is no different when it comes to the sex lives of the child’s separated parents – the question is whether the parents’ sexual relationships are affecting the best interests of the child. So, sex during separation can certainly have an effect on custody if it impacts the child. This will depend on the circumstances of the relationship. If a parent, for example, engages in sex with numerous partners while the child is in the home, it would not be surprising for a judge to decide that the parent is not acting in the child’s best interests. Circumstances vary, but especially when your kids are involved, it is wise to err on the side of caution. During the separation period, the safest course is to keep any sexual activity confined to times when your child is staying at the other parent’s house. Being responsible and aware of what your children see is both good for your kids, and good for your custody case.
Discovery & Court Testimony
Discovery is the process of both sides gathering information before a court proceeding. This is done through interrogatories, which are written questions that require written answers, and depositions, which are out of court testimony under oath. Depositions usually take place at an attorney’s office, and a court reporter is present to make a transcript of the testimony. In family law cases, questions about the parties’ sexual relationships are common in both discovery and court proceedings. As we’ve seen during this discussion of sex during the separation period, sexual behavior can be relevant to multiple issues during divorce and custody proceedings. Opposing attorneys might also ask intimate questions to put you on the defensive. Thus, sexual and relationship questions are likely to arise during your case. As unfair and invasive as it may seem, your personal life is not necessarily private during a divorce, so you and your lawyer must be prepared to face questions about your behavior, possibly from both a judge and the opposing party.
Bottom Line: Should I, or Shouldn’t I?
So, over the course of three posts, we’ve addressed a number of issues that can arise from having a sexual relationship while you are separated from your spouse. Divorce is complicated – emotionally, financially, and legally. Be honest and realistic with yourself about this issue: sex will most likely make your divorce process even more complicated. Understand and consider the consequences that can follow from your decision. Emotions run high during divorce, and moving on too quickly can make it more difficult to resolve the issues that you and your spouse face. Your best bet is to focus your energy on getting through the separation and resolving the remaining issues of your marriage; save the dating and sex for after the divorce.
Alimony & Post-Separation Support
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.