Alimony and Marital Misconduct

 Horner v. Horner, No. COA19-632 (unpublished)

 

An alimony claim in North Carolina requires one spouse to be a dependent spouse and the other spouse to be a supporting spouse. A dependent spouse, as defined by statute, is a spouse who is “actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse” (N.C.G.S. § 50-16.1A). It is important to remember that in North Carolina a claim for alimony must be pending when a Judgment of Absolute Divorce is entered. If an alimony claim is not pending when a Judgment of Absolute Divorce is entered, the claimant is barred from bringing the claim in the future.

A court can consider marital misconduct when determining the amount and duration of an alimony award. Marital misconduct encompasses a broad range of acts that occur during the marriage and prior to or on the date of the parties’ separation. The court’s consideration of marital misconduct is the main issue in the Horner v. Horner matter, a case recently decided by the North Carolina Court of Appeals.

 

Scott Horner and Ellen Horner were married on April 14, 1995. One child was born of the marriage. Scott and Ellen separated and subsequently divorced on August 28, 2017. Ellen filed claims for post-separation support and alimony in her Answer. The trial court heard Ellen’s claim for alimony on November 29, 2017. An Order on Alimony was later entered and filed, declaring Scott as the supporting spouse and Ellen as the dependent spouse pursuant to N.C.G.S. § 50-16.1A.

 

Along with considering the parties’ lavish standard of living during the marriage, the trial court also found Scott engaged in marital misconduct during the parties’ marriage. According to statute, alimony shall be awarded if the court finds that the supporting spouse engaged in illicit sexual behavior prior to or on the date of separation. N.C.G.S. § 50-16.3A. Scott appealed from the court’s alimony decision contending that the trial court erred by concluding that it was barred from considering Ellen’s marital misconduct because he had committed illicit sexual behavior. According to statute, “If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.” N.C.G.S. § 50-16.3A(a). According to the Court of Appeals, the trial court made no such finding with regard to Ellen’s illicit sexual behavior, or lack thereof, despite Scott presenting evidence at trial that Ellen threatened to have an affair. Based on this, the Court of Appeals reasoned that the trial court erred by concluding that it was barred from considering Ellen’s illicit sexual behavior, being that the statute directs the court to consider the relevant factors when making a determination of alimony. N.C.G.S. § 50-16.3A(b). The Court of Appeals, as a result, remanded to the trial court to make findings regarding Ellen’s illicit sexual behavior, or lack thereof, to determine her entitlement to alimony.

 

Remember that the court can consider several factors when determining the amount and duration of alimony. Engaging in marital misconduct prior to or on the date of separation may change the court’s decision with regard to alimony in your matter. If in doubt, consult a family law attorney.