No fault simply means that one spouse can not be held accountable for the demise of the marriage. Any affairs or marital misconduct by either spouse has no influence over ED or child custody. The only thing that it affects is the spouse’s ability to request alimony.
The only requirement for divorce in NC is being separated for one year and one day. In other states, the fault can be placed on one spouse and it affects more of the property/asset division.
What is ED?
Equitable Distribution of marital assets and debts. In NC each spouse is entitled to 1/2 the marital assets and responsible for 1/2 the marital debt.
This is why a separation agreement can be useful because all of the ED can be settled in that agreement without ever having to go to court.
Stepmother is absolutely correct. No fault simply means that divorces are granted without the necessity of either side proving the other side did anything to provoke a divorce. Divorce is granted based on the parties living separate and apart for one year and one day, with at least one of them having the desire to remain living separate and apart permanently
ED is equitable distribution of all assets and debts accumulated by the parties from the date of marriage to the date of separation. In most cases 50% to each party is what the court (or the parties via separation agreement) considers to be equitable.
Erin E. Clarey
Attorney with Rosen Law Firm
Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044
Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Thank you.
Sure.
Erin E. Clarey
Attorney with Rosen Law Firm
Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044
Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Please explain on this. I don’t understand what this means. No fault state, what does this mean?
Hello! Thanks so much for providing this forum and your help. We had called your office today but you do not serve our area.
Here is the scenario: Marine wife commits adultery which is proven by military intervention. Confessions documented. Pictures also, them unclothed in the marital bed. She has now filed for divorce, under what grounds, we have no idea yet.
Our question is, can the ex-husband-to-be countersue for the adultery? And, if so, would he do that through his attorney or just by going to court and taking the evidence on the date that has been set?
What does winning by adultery provide? What will that do to this divorce?
She has filed for alimoney, child custody, child support, etc… Also, does this have ANY bearing on a child custody issue which the court date is one month after the divorce?? He is fighting for custody as well.
Thanks in advance!
North Carolina is a no fault divorce state which means one does not have to prove grounds for divorce. An absolute divorce will be granted upon petition filed one year and one day after the date of separation.
While no civil action lies for adultery the husband can use the infidelity to bar any claim for alimony the wife may have, assuming she is the dependant spouse. A dependant spouse is one who makes less money than the other spouse, and who can prove he or she is actually and substantially dependant on the supporting spouse to meet his or her needs. In North Carolina a dependant spouse who can be proven to have had an affair is barred from seeking alimony.
As for the custody action, infidelity is rarely considered as a “make or break factor” in a custody determination. The court will consider any and all evidence that relates to what is in the chidren’s best interests, and morality is considered. Therefore er adultery may help the father’s case, but likely not in a substantial manner.
Please feel free to contact our client liaison who may be able to refer to you an attorney who practices in your area.
Thanks so much for your reply… One more thing… She is from another country and he has been told that once the divorce is final, she will be deported…however, we couldn’t be certain of that. This is one reason why he wondered if it was imperative to present the adultery part…
Will it make a difference in her deportation if she was found “guilty” of “adultery” or AOA? Or do you know where we can find out what bearing this will have at INS?
If this is NC there is little that adultery affects from a legal standpoint, except alimony. I know very little about military aspects though and I do believe that hold some different standards, if the spouse committing adultery is the one in the military.
Adultery is still illegal in NC though you may need to weigh the pros and cons of going forward with a suit. The 3rd party can be sued for Alienation of Affection in which the spouse must show that the couple had a viable marriage and that the 3rd party influenced the spouse’s affections. They can be charged with Criminal Conversation (adultery) but from what I understand, this is rarely prosecuted. Either suit is long, drawn out, and costly. But they can be and have been won by the injured spouse.
The adultery will have little to do with the custody unless the children were present when this took place. If the children were not present, have no knowledge of this, and were not affected by the acts, then it serves only to show character of the parent. My husband’s ex was photographed taking her shirt off in several bars post separation, but was told that what she did on her time was her business, more or less.
He should fight for custody the best he can but in the end, be willing to settle for joint physical custody with equal time. Normally, courts do not look at a spouse having an affair as having anything to do with their ability to care for the child. Especially, if that parent has previously been a primary caregiver. There’s a lot of debate on that issue, but it will boil down to what the judge thinks, how much is presented in court and how well sharing custody could work between the parents.
The best option, if the children were not present during the adulterous acts, is to show the court why it would be in the child’s best interest to be in his care. Don’t be so concerned about showing that she’s a bad mother, but that he’s a good father. After the initial hearing, they would have a chance to renegotiate before it goes back in front of the judge. Go in asking for primary physical custody (NC defaults to joint legal if not specified) and agree to settle for joint custody with equal time.
Child support will be based on the # of overnights with each parent, their incomes, insurance, child care, and any other extraordinary expenses, or it can be an agreed on amount that the court would see as fair.
For everyone involved, it really is better that they attempt to look past their own differences and focus on what’s best for the child/children. Though he has a right to be angry and hurt, that does not necessarily mean that the child/children should be without the other parent. She needs to realize that though she is losing her husband, the child/children do not have to lose their father.
It often takes time to realize this but by then everyone has spent a LOT of money, time, been through a LOT of stress and humiliation…no one ever realizes that there’s a lot of water under the bridge until after they set it on fire. My thoughts are with you…hang in there.
The adultery will not have any bearing on her immigration status as though it is a crime; I can say it is near certain she will not be convicted of adultery as the crime has not been prosecuted in many many years.