Marital Fault and Alimony

Before mid 1995, for a court to order post separation support and alimony, there had to be a finding of marital fault. This is no longer required in North Carolina, and represents a very important change in our state laws. While not a requirement, the finding of marital fault on the part of a supporting spouse is no longer the sole issue in the award of support to a dependent spouse. Fault on the part of the dependent spouse is still considered.

Though a dependent spouse is not required to prove fault on behalf of their spouse for entitlement to alimony, marital fault is still an element that a Court can consider in fixing the amount of alimony awarded, if any.

Marital fault is enumerated in the North Carolina statute as follows:

• Illicit sexual behavior, defined as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse.
• Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.
• Abandonment.
• Malicious turning out of doors.
• Cruel or barbarous treatment endangering the life of the other spouse.
• Such indignities as to render the condition of the other spouse intolerable and life burdensome.
• Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets.
• Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
• Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.

Proving marital fault in a North Carolina court varies according to the fault. In those cases where it is proven that a dependent spouse engaged in uncondoned illicit sexual behavior, and the supporting spouse committed no similar fault, the dependent spouse loses his or her entitlement to alimony but not necessarily the right to post-separation support.