Is "Coming out as Gay" the same as Constructive Abandonment

How does NC Divorce law regard a situation in which a 38 year-old woman, married for 13 years, and with 1 daughter (by her husband), comes to the realization that she is gay? The couple had originally mutually decided it would be best to divorce (to allow each of them to pursue their own lives and future loves), and to share joint custody of their 11-yo daughter. However, in the current process of discussing alimony (because husband earns 4 times wife’s salary), husband recently suggested that his obligation for providing alimony could be limited (or even denied) because of what he calls her “constructive abandonment” of the marriage. Yet, the facts (with which husband agrees) are that wife has never engaged in any kind of gay (or hetero) extramarital actions. So, the question is whether the wife simply “coming out as being gay” (without having engaged in any sexual misconduct or extramarital affair) could be considered the same thing as “constructive abandonment”?
Here’s some background: Approximately 3 years ago, because both wife and husband had felt for some time that their marriage had grown stale, they sought marital counselling. Intimate communications had always been a struggle (mostly because husband does not like to share his feelings), and sexual relations between them had slowed down for some time to once/year (with neither of them expressing a desire for more frequency). Essentially, they recognized that they were “just really good friends and co-parents". Then, about 2 years ago, as wife continued on with further self-reflection on how to improve her happiness and self-esteem, she started recognizing her gay orientation. Wife gradually shared it with her husband, siblings, pastors, their daughter, her parents, and a limited number of close long-time friends (female and male), all of whom have been very supportive. Although wife has had no gay relationship, it has been through reading, praying, and counselling that she is now convicted to “come out” openly as gay. Six months ago, the couple separated (her moving into a separate house that they both own) and sharing joint custody. It is only recently that husband has expressed this idea about “constructive abandonment” as a way to limit his obligation to pay alimony.

While abandonment is a type of marital misconduct that can affect alimony, this scenario is not likely to be deemed as constructive abandonment.

Constructive abandonment includes affirmative acts of mental or physical cruelty or a willful failure to provide adequate financial support to the marriage.

In this instance, Wife coming out as gay is not likely to affect her award of alimony without evidence that Wife committed an act of illicit sexual behavior during the marriage (between the date of marriage and date of separation).

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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