If My Boyfriend Spends the Night Will it Effect My Divorce Proceedings?

North Carolina requires a year separation period before filing for absolute divorce.  While some couples use this time period as an opportunity to decide whether or not they can salvage their marriage others are left simply waiting until they can finalize their divorce.  People who are separated want a defined set of rules regarding dating and sex after separation.  It is not uncommon for one spouse to want to hold on to the marriage while the other is ready to let go and move one with his/her life.  Sex during the separation period can lead to many pitfalls and can have a negative effect on your divorce and it is important for you to understand how it can affect you.

Crime of Adultery

Under the North Carolina criminal statues, having sex after separation, with someone other than your spouse, constitutes the crime of adultery. (North Carolina General Statutes §14 – 184).  While enforcement of this statue is rare, it is common for sex during separation to affect negotiations and lawsuits.  What could have been an amicable divorce can turn instantly acrimonious when one spouse learns the other is already having sex with someone else.  The person who is not ready to move forward can feel left behind and this can lead to potentially harsher negotiations and legal tactics.   The risk of a criminal record is problematic as well.  A criminal conviction has an impact on your earning potential, your ability to adequately care for your children and a judge’s perception of you.  During a separation period, you need to conduct yourself in a manner that a judge would not find offensive given that there is a possibility that a judge will make decisions regarding your future.

Post Separation Support and Alimony 

Sex after separation poses a problem for a dependant spouse seeking alimony. Marital misconduct factors into alimony claims in North Carolina.  A dependant spouse who would otherwise receive alimony is barred from alimony if he/she has had an affair while the parties lived together.  While sex during separation does not bar a dependant spouse from receiving alimony, a judge can consider it as corroborating evidence that the dependant spouse had an affair prior to the date of separation.

A supporting spouse’s duty to pay alimony is not affected by his/her having sex after separation. It does not affect their ability to pay alimony nor does it affect the dependant spouse’s need for alimony.  Again, a judge can consider it as corroborating evidence that the supporting spouse had an affair during the marriage.  This is an issue in cases where both parties are trying to prove that the other had an affair and therefore alimony could be affected.

A dependant spouse who has sex during the separation is not automatically barred from receiving post separation support or alimony, however, it can be used as evidence of cohabitation which does terminate post separation support and alimony.  According to NC §50-16.9 (b) “Cohabitation is evidenced by the voluntary mutual assumptions of those marital rights, duties, and obligations which are usually manifested by married people, and which include but are not necessarily dependant on, sexual relations.”   Do not put yourself at risk of an early termination of alimony.

Alienation of Affection/Criminal Conversation 

North Carolina is one of only seven states to allow a person to sue their spouse’s paramour for Alienation of Affection.  Simply put, the person filing suit has to prove that a third person caused his/her spouse to lose affection for them. While the person bringing the suit does not have to prove sex, the courts have said that sex prior to the date of separation is relevant to the claim.   Sex occurring after the date of separation can also be considered if it corroborates the conduct that occurred prior to the separation.  It can also be considered in cases where the separated couple is attempting to reconcile in that it corroborates the parties’ actions prior to the date of separation.

Criminal Conversation is easier to prove than alienation of affection because the person filing suit only needs to prove that he/she was legally married when the sex with the third party occurred and that the sex did occur.  As in the case of an alienation of affection claim, sex after separation can be used to corroborate the conduct that occurred prior to the separation.  Engaging in sex during separation places a third party who you may care about in jeopardy of a lawsuit.

Custody  

Sex during separation may affect custody when and if it impacts the kids.  The judge has to consider what is in the children’s best interests when determining custody.  Whether or not this affects the children’s best interest depends on the surrounding circumstances.  For example, if a parent has sex while the children are in the other parent’s this may not directly affect the children’s well being.  However, if a parent is engaging in sex with multiple partners and is parading these people through the home where the children are staying this may signal the judge that the parent is not behaving responsibly.

Discovery and Court Room Testimony

There are two forms of discovery that require a party to answer questions in different forms.  Interrogatories are written questions that require written answers from the party they are served upon.  A deposition is when you are required to give testimony under oath.  They generally take place at an attorney’s office.  All testimony is recorded by a court reporter and transcripts are generated.  Questions surrounding a person’s sexual behavior are common place in both forms of discovery and are also common in court room proceedings.

Questions are designed not only to illicit the truthful answers but also to put a party on the defensive.  If you have had sex after separation you are caught in a dilemma.   If you lie under oath you are committing the crime of perjury and if you tell the truth you are admitting to committing the crime of adultery.  You have two choices when asked about whether you have had sex with someone in any of the above situations.  One choice is to invoke your 5th amendment right to refrain from self incrimination.  However, in divorce hearings, when the privilege is invoked, the judge can infer that the testimony would be unfavorable to the person testifying.   The other choice is to testify truthfully and let the chips fall where they may.  The district attorney’s office is unlikely to prosecute and sex after separation does not prove an affair prior to separation.

Practical Effect of Sex After Separation

Emotions run high during divorce.  Moving on with your life too quickly before your divorce is settled can slow the process down and make it harder to resolve the issues.  If you have a spouse that does not want the divorce he or she is likely to become much more difficult to deal with if he/she knows you are moving on with your life.  The best thing you can do is focus your attention on settling all outstanding issues and save the dating and sex until after the divorce.


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