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Alimony and Illicit Sexual Behavior

If a supporting spouse has committed an act of illicit sexual behavior, the dependent spouse is entitled to alimony. If the dependent spouse has committed an act of illicit sexual behavior prior to the parties’ separation, he or she will be barred from receiving alimony. If both spouses have committed acts of illicit sexual behavior during the marriage prior to a separation, then a judge must decide if the dependent spouse is entitled to receive alimony.

North Carolina law defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts as defined in North Carolina criminal law, voluntarily engaged in by a spouse with someone other than the other spouse.”

Sexual acts which meet the definition of illicit sexual behavior include:

• cunnilingus
• fellatio
• analingus
• anal intercourse
• the penetration, however slight, by any object into the genital or anal opening of another person’s   body except for accepted medical purposes.

In order to prove that your spouse committed an act of illicit sexual behavior or adultery, you will need to obtain admissible evidence of such conduct. In most cases, this conduct is proved by circumstantial evidence. Circumstantial evidence of illicit sexual behavior is typically obtained by a private investigator who conducts a surveillance of the spouse who is acting suspiciously. Adultery is presumed if you can prove that both persons had the “inclination” and “opportunity” to commit the act.

Examples of “inclination” include the following:

• hugging, kissing or other intimate behavior;
• emails or text messages with sexual content or expressions of love;
• photographs; and
• records of gifts or expenditures of money on the third party.

In order to prove opportunity you must show your spouse and a third party spent time alone together in a location where there was an opportunity for sexual relations, such as a hotel or empty beach house.