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Limits on Alimony as a Result of Condoned Marital Misconduct

In Ellis v. Ellis, the North Carolina Court of Appeals reviewed N.C.G.S. § 50-16.3A and the lower court’s application of the statute. It considered the sixteen relevant factors included in the statute to determine the amount, duration, and method of payment for an award of alimony when there were acts of marital misconduct condoned by the other spouse.

Ellis v. Ellis,  767 S.E. 2d 413 (N.C. Ct. App. 2014)

  • Facts: Plaintiff Wife and Defendant Husband were married in December 1996, and two minor children were born of the marriage. In 2008, Defendant Husband discovered that the Plaintiff Wife had engaged in an extramarital affair beginning in 2006. The parties agreed not to separate and underwent marital counseling to repair the marriage. In 2011, Plaintiff Wife filed a complaint for divorce from bed and board, post-separation support, alimony, equitable distribution, interim distribution, child custody, and child support. The trial court awarded Plaintiff Wife two years of alimony based on the plaintiff’s marital misconduct. It did not award the plaintiff attorney fees. This article will focus only on the issue of alimony.


  • Issue: Whether the trial court, in determining the amount and duration of alimony, abused its discretion in considering Plaintiff Wife’s condoned marital misconduct and awarding Plaintiff Wife only two years of alimony.


  • Holding: The N.C. Court of Appeals, in applying the factors in N.C.G.S. § 50-16.3A(b), found the trial court ruled correctly in only granting Plaintiff Wife two years of alimony.


  • Rationale: Under N.C.G.S. § 50-16.3A(b), the trial court shall exercise its discretion in determining an amount, the duration, and payment methods for alimony awards. Awards of alimony may be for either a set or indefinite term. In the determination of awards, the trial court must consider sixteen relevant factors that include the duration of the marriage, earning capabilities of the parties, and marital misconduct ().


The trial court found that the Plaintiff Wife had committed acts of illicit sexual misconduct during the marriage, without the Defendant Husband’s knowledge or approval, and before the date of separation. The court’s findings of fact stated that the Plaintiff Wife described herself as a bored housewife, entitled to have an extramarital affair because she had given up the right to pursue her career goals to support Defendant’s career.


The trial court ruled that the Defendant Husband had condoned the Plaintiff Wife’s illicit sexual misconduct. Due to the condonation, the behavior was not an absolute bar to alimony. The court stated that in determining the amount and duration of alimony, the court considered the nature of the behavior and resulting disrespect and mistreatment of the marriage. The Court of Appeals found that the consideration of the disrespect of and mistreatment of the marriage by the trial court was sufficient to explain the lower court’s reasoning in limiting the duration of the alimony award.


The Court of Appeals acknowledged that the Defendant Husband’s condonation of the Plaintiff Wife’s illicit sexual behavior prevents the behavior from being an absolute bar to alimony. However, N.C.G.S. § 50-16.3A(b)  allows the trial court to consider acts of condoned marital misconduct as one of the sixteen factors when determining whether to award alimony.

Lesson: If you have recently discovered evidence that your partner has engaged in any acts of marital misconduct, the advice of an experienced family law attorney can help preserve certain rights as a spouse regarding alimony, whether receiving or paying. Even if you have forgiven your spouse for past indiscretions, the court may limit the amount or duration of alimony based on the prior actions of a wayward spouse.