Illicit sexual relationships can have a significant impact on a spouse’s rights and obligations in the context of separation and divorce, specifically regarding spousal support.

How is Illicit Sexual Behavior Defined?

For the purposes of divorce and alimony, the North Carolina General Statute (G.S. 50-16.1A(3)(a)) defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G. S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse.” G.S. 14-27.20(4) defines sexual acts as “[c]unnilingus, fellatio, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body.”

To simplify, if a spouse engages in any of the following sexual acts with a person other than their spouse during their marriage, that spouse has committed illicit sexual behavior:

• Sexual intercourse
• Oral sex
• Anal sex
• Any genital or anal penetration, digital or otherwise

Is Illicit Sex Considered Adultery?

Many people use “adultery” and “illicit sexual behavior” interchangeably (and to some extent, they do describe the same acts), but for purposes of divorce and alimony, criminal adultery is not the specific concept to be discussed. Adultery is the legal term used to describe the criminal act of a man and woman not married to each other engaging in lewd and lascivious association with each other. G.S. 14-184 is a North Carolina criminal statute that sets forth that fornication and adultery are Class 2 misdemeanors. 

Does Illicit Sex Affect Alimony?

Whether illicit sexual behavior has occurred is a relevant question in the context of separation and divorce, as it is a form of marital misconduct that could impact a person’s right to receive alimony or could affect the amount and duration of alimony to be received. If a spouse who is entitled to receive alimony committed illicit sexual behavior, then the Court is prohibited from awarding alimony. If a spouse who is obligated to pay alimony committed illicit sexual behavior, the Court must order alimony to be paid; however, the amount and duration of alimony is in the Court’s discretion. If both spouses committed illicit sexual behavior, then the Court is empowered to either award or deny alimony after considering all the relevant circumstances. A single act of illicit sexual behavior on the part of a spouse who is entitled to receive alimony is sufficient to effectively prohibit that spouse from receiving alimony.

How is Illicit Sexual Behavior Proven?

The easiest way to prove that illicit sexual behavior has occurred is if a spouse admits to it. There are also occasions when a spouse is caught in the act, either by the other spouse or a third party. Sometimes the third party who catches a spouse in the act is a licensed private investigator hired to uncover marital misconduct. Many times, however, illicit sexual behavior is not admitted and has been hidden. When this is the case, a spouse may need to rely on circumstantial evidence in order to prove that illicit sexual behavior has occurred.

The doctrine of “opportunity and inclination” is one way to prove illicit sexual behavior with circumstantial evidence. If a spouse can prove opportunity and inclination, then there is a presumption that illicit sexual behavior has occurred.

What is Inclination?

Inclination is the likelihood that a spouse is inclined to engage in illicit sexual behavior because of that spouse’s (and the spouse’s purported paramour’s) adulterous disposition. An example of what can help prove inclination includes flirtatious communications and actions between the spouse and his purported lover.

What is Opportunity?

Opportunity can be proven simply by showing that the spouse and his purported paramour have had occasion to be at the same place at the same time and the chance to act on their mutual sexual inclinations. Work travel, lunch breaks, and having spent time alone together are all examples of opportunity.

What Do I Do if I Suspect My Spouse is Cheating?

If you believe your spouse may be cheating, it could be beneficial for you to have a consultation with a divorce lawyer to talk about your specific circumstances and to determine whether it is in your best interest to invest some resources to try and uncover illicit sexual behavior. It’s important to note that spousal spying is rarely a good idea and could be illegal, depending on the actions taken while spying, such as putting a GPS tracker in your spouse’s car, wiretapping your spouse’s cell phone, or hacking their computer. If it is advisable to investigate your spouse’s suspected illicit sexual behavior further, divorce attorneys typically can offer a number of resources within the scope of a legal strategy that will be helpful for your overall priorities.