Your spouse has confronted you with evidence that confirms that you have been having an affair. Does this mean that she/he gets everything from the marriage…all your hard earned dollars, your home and other property? Does it mean that you will have to start over from scratch? The simple answer is NO. Adultery, whether you are the adulterer or the wronged spouse, is not a factor set out by law as having any effect or relevance to equitable distribution of the property that you have acquired during the marriage. North Carolina General Statute 50-20 and following establishes what property is subject to division and also sets out “factors” that the court may consider in deciding whether equal is equitable or whether an unequal division is what is more fair. (See below) Many people who have been caught cheating on their spouse either out of shame, fear of public embarrassment or simple mistaken belief give all of the marital estate, real and personal property, to the other spouse. This result is not contemplated by the law nor is it what will occur if you end up in court. Now to be fair, as in almost every area of the law, the courts have in very limited circumstances under the catch-all subsection c(12)(see below) found it appropriate to provide for an unequal distribution when the “affair” resulted in a reduction of the marital estate. What this means is that if you spend marital money on the affair or create debt as a result of the affair then the court can consider that fact in making the ultimate distribution of the marital estate. It is important to know all the factors that affect your case and the family law attorneys at Law Firm Carolinasare ready to assist you.
Factors to be considered:
(1) The income, property, and liabilities of each party at the time the division of property is to become effective.
(2) Any obligation for support arising out of a prior marriage.
(3) The duration of the marriage and the age and physical and mental health of both parties.
(4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
(5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
(7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
(8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
(9) The liquid or nonliquid character of all marital property and divisible property.
(10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
(11) The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor.
(11a) Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
(11b) In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
b. Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.
c. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
d. The surviving spouse’s right to claim an “elective share” pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.
(12) Any other factor which the court finds to be just and proper.