Can a Cheating Spouse Get Post-Separation Support from the Non-Cheating Spouse?

North Carolina courts base spousal support decisions on the financial requirements of each spouse and their respective incomes. This is the general approach taken whenever a party in a divorce moves for post-separation support. However, many spouses wonder if marital misconduct factors into temporary support obligations, and the answer is yes.

Post-separation support is not intended to last after a divorce; instead, it is a temporary form of alimony to provide financial support to a dependent or lower-earning spouse. When deciding whether or not to award post-separation support, North Carolina courts assess the following factors that are outlined in General Statute Section 50-16.2A:

• The standard of living the spouses are accustomed to
• The employment or other income each spouse earns
• Each spouse’s ability to earn income
• Separation and marital debt obligations
• Each spouse’s necessary expenses
• Each spouse’s legal obligation to support anyone else

State law also states that post-separation support will be awarded based on these factors if the court finds that one spouse is considered a dependent spouse without the resources to meet their needs and the other spouse is financially able to support them. However there is an exception – marital misconduct.

Marital Misconduct and Post-Separation Support

This issue was one of a few legal points discussed in the appeals case of Evans v. Evans. The trial court in Evans denied Wife’s claim for post-separation support because of her actions and improper behavior. Although Husband in this case contributed the majority of the household’s income, there was evidence of marital misconduct that caused Husband to suffer indignities.

Wife was believed to have had an affair with a local doctor based on condoms Husband found in her purse and sexually explicit emails between Wife and the doctor. Further, Wife took numerous multi-night trips during the 18 months prior to separation and refused to tell Husband where she was going. This behavior, combined with additional misconduct by Wife, such as the damaged condition she left the marital home before being ordered to vacate, led to her claim for post-separation spousal support being denied by the trial court. Wife appealed the decision.

North Carolina law states that a judge may consider marital misconduct when determining whether or not to grant post-separation support and when deciding on the amount of support. The Court of Appeals consequently affirmed the trial court’s decision to deny Wife’s claim for post-separation spousal support.