Does an "emotional affair" qualify as Marital Faul


My wife and I have been married for 21+ years. We are now on the brink of separation/divorce due to the situation that follows. Over the past 18 months, she has engaged in a relationship with a high school classmate that she characterized as a friendship, but which has been termed an “emotional affair” by two professional marriage counselors. I have been devastated, humiliated and enraged by this relationship, but I have done everything in my power, including marriage counseling, to reconcile with my wife and preserve our marriage/family (we still have 6 minor children living at home). I have no proof of sexual contact, but there are thousands of text messages and hundreds of hours of phone calls as well as dates at bars and restaurants from which she has not returned home until well after midnight. Does NC law stipulate that there must be proof of sexual contact to establish “marital fault” when considering whether I am going to be responsible for post separation support/alimony? Do the actions of my wife meet the criteria of “indignities making the life of the offended spouse burdensome and intolerable”? Her attorney has said for her not to worry about this “friendship” as there must be proof of “vaginal intercourse” for her to have done anything legally wrong. Is this true?


For purposes of proving illicit sexual conduct, you must prove that your wife had sexual intercourse with this “friend”, or that she engaged in deviate sexual acts with him. While proof of illicit sexual behavior is an absolute bar to a dependant spouse being awarded alimony (so long as the supporting spouse did not engage in the same conduct) it is not the only factor a court can consider in an alimony award.
The statue lists the following 16 factors that the court shall consider (if relevant to the specific case):
(1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties” marital or divisible property.
Marital misconduct includes “indignities rendering the condition of the other spouse intolerable and life burdensome.
Post-separation support is different. PSS is a sort of temporary alimony that the court may award to a dependant spouse, and the award shall be based on the financial needs of the parties. Consideration is given to the parties’ accustomed standard of living, the present employment income and other recurring earnings of the parties, their income earning abilities, the expenses and debt service of each party.
The judge shall consider martial misconduct in making a determination of a post-separation support award, however the language in the post-separation support section of the statue does not bar a dependant spouse from an award of PSS as the alimony statute does.


From what I’ve seen in case law, probably not.

You must prove physical intercourse of some sort to prove adultery.

As far as the life burdensome clause goes, most of what I’ve seen deals with things like restricting money so tightly that the spouse cannot get common necessities, excessive controlling behaviors, death threats, or suicide threats.

Plus there’s also some early case law that explicitly says that men & women can be friends without an affair occuring. There is also one confusing case in which a man and woman spent the night at a hotel together and came out wearing different clothes, but that wasn’t considered sufficient proof of adultery. (My bet is that that one was kind of a fluke ruling.)


I am not a lawyer, but I have studied this a lot.
Her lawyer is wrong. Without pics of them having sex, you need to prove both inclination and opportunity to have sex in order to show there was an affair. You have inclination with the text messages, emails. Take a digital photo of the text messages if you can, etc. Get copies of the emails- this can be done legally if you have access to her email account usually. You can record a phone conversation with the affair partner legally in NC without telling him you are recording the call.

The other thing you would need to prove is opportunity. She would need to be alone with him, and you would need to be able to prove it with photographs of them going into a hotel or apartment. I had to use a PI (it was gross). That is the minimum to prove adultery.

That is what you’ll need to prove adultery. Either that or pics of them in the deed. There is a lot of established case law. The main reason to do this is if you divorce, you won’t have to pay alimony to a dependent spouse. And, if she has been a Stay at Home Mom, you are screwed.

Getting rid of the paramour

The affair partner can be sued by you for “Alienation of Affection” in North Carolina. You don’t need proof of sex. It is a civil tort. My threatening my wife’s affair partner got him to back off.

If the marriage fails, and you have the evidence that the affair partner knew he was endangering your relationship and didn’t care, you can sue him. According to a webinar I just watched from NC continuing law education, awards are between $10-$100K if you settle out of court, etc. But, it is an iffy thing at best.

But, the best use of AoA lawsuits is to get the affair partner to back off, and to get your spouse to settle for less if you split. Rosen doesn’t like AoA cases, and has tried to get the law changed, so maybe that is why they didn’t mention it. But, you are in a battle for your marriage, and good luck with that. I was married for 20 years before the affair happened. After a year of reconciliation she still left me, and it hurts. Good luck.


Just so you will know…my ex admitted adultery. I had all the proof that I needed. When the trial rolled around, the judge stated he would NOT hear any evidence concerning adultery, so the adultery counted for naught. I was the dependent spouse. I begged my attorney to object so that I would have a record for objection in case I needed to appeal. My attorney refused to submit an objection, telling me that the judge was going to focus only on the financial issues. Period. In the final outcome, I was screwed. The results of my case may as well have reflected that I was the one who had the affair because the judge made sure that I received as little as possible even down to the point where I did not receive 50% of the marital property. I don’t know exactly why my case turned out as it did, but I have the suspicion that my judge was bought off. Without the objection and knowing the appeal would return to the same judge, I opted to quit because I simply could not afford any more legal bills and with entry of the final order, I was severely financially strapped. I needed to get whatever I could get at that point and having it tied up for another year or two just was not possible. The ex had controlled everything for over 4 years. I had nothing.

The law in NC is specific. If the dependent spouse has an affair, then no alimony will be awarded. If the supporting spouse has an affair, then it’s fairly certain that compensation will be awarded to the innocent spouse. In other words, alimony must be awarded. I was awarded alimony albeit a mere pittance. A of A is only beneficial if the paramour has some money or property from which to collect a settlement. Otherwise, a suit against an affair partner is not worth it. If your ex-wife is guilty of an affair and she is DEPENDENT, then it is well worth your time to make sure you do not pay alimony. Carefully weigh the pros and cons of a suit against her affair partner. If he has money, then go for it. If not, forget it. It will cost you too much in the long run.