Fault in a Raleigh Divorce: What Counts and Why It Matters

North Carolina is a no-fault divorce state. Despite that, fault still plays an important role in many divorce cases in Wake County and the surrounding areas. In North Carolina alimony, and child custody can be impacted by marital misconduct as defined under NC law. 

Understanding what counts as “fault” and how it can impact your case is critical if you’re separating in Raleigh, Durham, Cary, or anywhere in the Triangle.

What Is a No-Fault Divorce in North Carolina?

Before we discuss fault, let’s look at the typical standard for divorce in North Carolina, no-fault divorce. A no-fault divorce means you don’t need to prove that your spouse did something wrong in order to get divorced.

Instead, North Carolina law allows divorce based on the following criteria:

• You and your spouse have lived separate and apart for at least one year, and 
• At least one of you intends for the separation to be permanent 

That’s it. There’s no requirement to air personal issues in court or assign blame. A couple can file for divorce and walk away without doing anything other than living separately for a year. 

For many families in Raleigh and the Triangle, this simplifies what can otherwise be a stressful legal process. However, this does not resolve other issues that are often incidental to divorce.

What No-Fault Divorce Does NOT Decide

It’s important to understand that a no-fault divorce only legally ends the marriage. It does not automatically resolve everything else a divorce entails, including:

• Child custody and visitation 
• Child support 
• Division of property and debts 
• Division of retirement accounts
• Division of business assets
• Alimony 

All of these issues must be resolved separately. Whether you resolve these issues through a collaborative agreement or by pursuing a court order from a judge, you MUST resolve them prior to divorce or else you legally will not be able to anymore.

In many marriages, these issues are resolved without ever going to court and are agreed to by both parties. However, if there has been fault in the marriage and you sign an agreement without knowing your rights, you may be leaving custody time or money on the table.

What Is “Fault” Under North Carolina Law?

In North Carolina, “fault” is usually referred to as marital misconduct. These are specific behaviors that occur during the marriage, are completely voluntary on the part of the spouse committing them, and result in the degradation of the relationship. They may influence certain legal outcomes depending on how spouses decide to go about their divorce.

Common examples include:

• Adultery 
• Abandonment 
• Cruel or abusive treatment 
• Reckless spending or financial misconduct 
• Substance abuse 
• Indignities that make the marriage intolerable 

These issues can significantly affect what happens once the divorce is filed. Some of the consequences for these actions can last many years or even bar someone from assets they would otherwise have been entitled to.

Types of Fault That May Impact a Raleigh Divorce

Adultery

Adultery is one of the most significant forms of marital misconduct in North Carolina. It is the act of one spouse having sexual intercourse with another person outside of the marriage without the consent of their spouse. Whether called infidelity, cheating, or any other term, the financial consequences can be drastic.

However, it typically only impacts one spouse: the dependent spouse. If one spouse would have otherwise been entitled to alimony but it is found that they committed adultery, this will typically bar them from receiving any alimony. As such, if you believe or have evidence that your spouse has cheated on you and you are the supporting spouse, speak to an attorney before you sign anything. It could be the difference between years of alimony and not paying a penny.

Abandonment

Abandonment occurs when one spouse leaves the other without justification and without intent to return. Key elements for meeting fault include long-term absence, lack of support, and often no warning.

In Wake County courts, abandonment may result an abandoned spouse receiving a “divorce from bed and board,” allowing them to remain in the home and receive financial support. It may also support a claim for alimony or custody depending on the extent of the abandonment.

Cruelty or Domestic Violence

This includes physical abuse, threats, or severe emotional harm. In a divorce, it can impact both the spouse and the children. The bar to meet domestic violence includes any of the following:

1. Intentionally causing or attempting to cause bodily injury;
2. Making the aggrieved person or a member of their family or household be in fear of imminent serious bodily injury;
3. Making the aggrieved person or a member of their family or household be in fear of continued harassment which inflicts substantial emotional distress; or
4. The commission of rape or other criminal sex offense.

Courts in Raleigh and Durham take these claims seriously, and they may affect child custody arrangements, spousal support decisions, or result in a domestic violence protective order.

Financial Misconduct (Waste of Marital Assets)

Also known as “marital waste,” financial misconduct is the intentional hiding, dissipation, or fraudulent depletion of marital assets by one spouse without the knowledge of the other. It may be done for the spouse’s personal gain or even to try to impact property division rulings during divorce. Some examples includes

• Spending large amounts of money on an affair 
• Gambling away marital funds 
• Hiding or transferring assets 

Under equitable distribution laws, a judge may adjust property division to account for this behavior. 

Substance Abuse

Alcohol or drug abuse can have an impact when it comes to divorce, regardless of whether or not the other spouse is aware of the substance use. Illicit drug use or over consumption of alcohol can affect a parent’s ability to responsibly care for their children and the safety of the family within the household.

Furthermore, substance abuse can also affect a couple’s financial stability and may even constitute financial misconduct if a spouse siphons marital funds for their drug habit without the knowledge of their partner.

This is especially relevant in child custody cases in the Triangle area and should not be taken lightly.

How Fault Impacts Key Issues in a Raleigh Divorce

In North Carolina, different types of marital fault affect different parts of a divorce, and understanding these distinctions is especially important in Raleigh-area cases where financial and custody issues can be complex. 

Alimony

Alimony is the area most directly impacted by fault, particularly adultery. If a dependent spouse commits adultery, they are typically barred from receiving alimony. Other conduct like abandonment, cruel treatment, or substance abuse may also impact the duration of the alimony award and the amount of award.  The statute allows a court to review marital misconduct in making an alimony determination.  

Child Custody

For child custody, fault matters only if it affects the child’s well-being. This includes issues like domestic violence, substance abuse, neglect, or unstable behavior. These can significantly impact custody decisions because courts in Wake County focus on the best interests and safety of the child.

Property Division

In contrast, property division (equitable distribution) is generally not based on fault, but financial misconduct (such as wasting marital assets on an affair, hiding money, or excessive spending) can lead to an unequal division of property to compensate the other spouse.

Together, these distinctions highlight that while North Carolina is a no-fault divorce state, certain types of misconduct can still have meaningful legal and financial consequences on the outcome of a divorce.

Proving Fault in a Raleigh Divorce Case

If fault is relevant (especially for alimony or custody), it must be proven with evidence. This can be as simple as testimony from you and your spouse or can get much more complex depending on the fault involved and the issue you are trying to resolve. 

Judges in North Carolina look at all of the available evidence to reach their decision. Examples of evidence may include:

• Text messages, emails, or photos 
• Financial records 
• Witness or expert testimony 
• Private investigator reports 

Because these issues can become complex quickly, it’s important to approach them strategically. Stick to evidence that is relevant to the fault you are alleging and consult with an attorney to determine whether the evidence you want to present is pertinent to your case or not.

Should You Raise Fault in Your Divorce?

Not every case benefits from focusing on fault. In some Raleigh divorces, raising fault can increase legal costs and time without significantly changing the outcome of the case if the fault does not actually influence an issue in your specific case.

However, in some divorce cases, fault can have a critical impact on the results of the divorce. Alimony and child custody especially can be affected greatly, but only if the specific fault directly impacts those issues. For that reason, you should always speak with an attorney to determine whether pursuing fault is in your best interest.

Talk to a Raleigh Divorce Lawyer About Your Situation

Every divorce is different. Whether fault will matter in your case depends on your specific circumstances, finances, and goals.

If you’re dealing with issues like adultery, abandonment, or financial misconduct, getting clear guidance early can make a major difference.

Our divorce attorneys at Rosen Law Firm can help you understand how fault may impact your case and what steps to take next. Contact us or call (919) 787-6668 today for a confidential consultation.

Lisa Angel

Lisa  is a leading figure in North Carolina’s family law field, dedicated to guiding clients through challenging times with compassion and expertise. As the President and Owner of Rosen Law Firm, P.A., Lisa has built a successful practice specializing in divorce, child custody, child support, alimony, equitable distribution, and domestic violence. She has been a North Carolina Board-Certified Specialist in Family Law since 1998.

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