How to Prove Adultery in a North Carolina Divorce: Understanding the Burden of Proof and Its Impact

In many states, the alleged infidelity of a spouse rarely has an impact on divorce proceedings. North Carolina is not one of those states, and adultery can have a fairly significant effect on your divorce. If you believe – or know – that your spouse had an affair, you can certainly use this to your advantage if you choose to file for divorce. Of course, you will need to actually prove that the alleged infidelity occurred during your marriage – and this is not always easy. But if you can pull it off, proving infidelity can have major benefits. For example, you may no longer be required to pay spousal support.

The Burden of Proof

First of all, you should know that if you’re accusing someone of anything in the United States, the burden of proof always falls on your shoulders. The saying “innocent until proven guilty” is still true in this country. This means that your spouse does not need to prove that they didn’t commit adultery. If you fail to prove that this incident occurred, the court will assume that they are in the clear. That being said, the standard might be slightly lower compared to a criminal case, as only a “preponderance of evidence” is needed establish guilt in a civil case. In contrast, you’d have to prove guilt “beyond a reasonable doubt” if you were accusing your spouse of murder. That being said, it should be noted that adultery is also considered a criminal offense in North Carolina.

Acceptable Forms of Evidence

The digital age makes it somewhat easy to prove adultery in many cases. Text messages are admissible in court, and they can show a clear relationship between your spouse and their illicit partner. Social media posts are also beneficial. For example, your spouse might have been caught in a Facebook or Instagram photo with their illicit partner at a party. Even if they delete these social media posts or try to hide their text messages, this evidence can still be located and used in court. Your spouse may also face the consequences of trying to conceal this evidence.

Eyewitness testimony can also be very helpful. For example, a neighbor might have spotted the illicit partner at your home while you were away. Finally, skilled attorneys can cross-examine spouses if they take the stand, in some cases causing them to admit to the affair with well-thought-out questions.

Inadmissible Evidence

You should also know that many types of evidence are inadmissible in court. For example, filming, photographing, or wiretapping your spouse without their permission is illegal. Even if this evidence clearly shows your spouse committing adultery, the court will not accept it as evidence since it was obtained unlawfully.

The Date of Separation is Important

Another critical thing to consider is the date of separation. This occurs before couples become legally divorced, which is the official date of the “breakup.” In most cases, this is the moment couples stop living together. If your spouse starts a new relationship after the date of separation, it is not considered adultery. The exact date of separation can be a little vague sometimes, and it is easily disputed by a spouse accused of adultery. Because of this, you might also want to collect evidence that the separation occurred on a specific date.

Avoid Cohabitation During the One-Year Separation Period

After the date of separation, you will need to separate for at least 12 months before the divorce can proceed. If your spouse committed adultery during the marriage, it is important to avoid “cohabitation” during this waiting period. If the court sees that you started living with your ex again during these 12 months and resumed marital relations, judges will assume that you forgave your ex for their infidelity. You will then be unable to benefit from their adultery when you file for divorce.

What is the “Burden of Proof” in a North Carolina Divorce?

If this is your first time pursuing a divorce, you might be completely unfamiliar with the legal world. Many legal terms may cause confusion, including “burden of proof.” But what exactly is the burden of proof? Does it even play a role in a North Carolina divorce? What exactly do you need to prove during a divorce, and how convincing does your evidence need to be? These are all important questions as you move toward a divorce in North Carolina – particularly if you were the victim of misconduct during your marriage.

Do I Need to Prove Anything During My Divorce?

First, you need to ask yourself whether you need to prove anything during your divorce. There are a few situations where “proof” and “evidence” may not even factor into the equation. First of all, you might pursue something called a “no-fault” divorce. As the name suggests, this process does not require you to give a specific reason for ending your marriage. Instead, you simply tell the court that your relationship just is not working out anymore – and that is more than enough. Because there is no fault in these divorces, there is no need to prove anything.

But this is not your only option in North Carolina. The state also allows one type of fault-based divorce: Divorce based on incurable insanity. As the phrase implies, this means that you can end your marriage by proving that your spouse’s mental health has declined or become highly unstable. In this situation, the spouse who files for divorce may need to shoulder the burden of proof. This means they need to show evidence that clearly states their ex has become incurably insane. Fortunately, this should be a rather straightforward process involving providing medical records to the court.

Why Evidence is Still Important in No-Fault Divorces

There is a big difference between a “no-fault divorce” and an “amicable divorce.” No-fault divorces can still be highly combative, with both spouses hurling accusations at each other throughout the legal process. No-fault divorces can also go to trial, which means that both spouses will have a chance to argue their respective cases in front of a judge. Evidence and the burden of proof may play an essential role in these litigated divorces.

For example, you might accuse your spouse of substance abuse or domestic violence. You might argue that this makes them unfit to act as a guardian for your children. But making these accusations is not enough: You must also back up your claims with evidence.

You might also accuse your spouse of financial misconduct. Perhaps you believe that they have been concealing assets. Maybe you feel they are dissipating assets to leave you penniless. Perhaps you have seen them destroying marital property that you want to keep, such as a priceless family heirloom. Whatever the case, it is best to back up these accusations with proof.

Marital misconduct may also affect the establishment of spousal support (also known as alimony). For example, spouses who commit adultery during their marriages may lose access to spousal support after the divorce. To avoid paying alimony to such a spouse, the other partner must prove that this adultery occurred.

How Convincing Does My Evidence Need to Be?

Different kinds of trials have different requirements when it comes to proving wrongdoing. In a criminal case, the prosecution (or accuser) must prove that the defendant (the accused) is guilty “beyond a reasonable doubt.” This means there can be almost no doubt that the defendant is innocent. In other words, the evidence has to be extremely convincing.

The bar is slightly lower regarding civil cases – such as divorce trials. In this situation, you must prove the defendant is guilty with a “preponderance of evidence.” This means that you must show that the chances of your ex being guilty are higher than 50%.

Should I Prove Adultery in a North Carolina Divorce?

Proving adultery in North Carolina might seem like more trouble than it is worth. Gathering evidence of your spouse’s affair may trigger unwelcome memories, feeding the psychological trauma of your betrayal. But before you dismiss this strategy entirely, you should review the benefits of proving adultery in a North Carolina divorce. Although it represents an additional challenge, it could provide several important benefits.

Proving Adultery Eliminates Your Alimony Obligations in North Carolina

Unlike many other states, North Carolina family courts consider adultery when deciding divorce. The Tar Heel State considers adultery a form of marital misconduct. In addition, adultery is technically a criminal offense in North Carolina. Family court judges decide whether each spouse committed marital misconduct during the marriage. Based on this determination, they may not award the “guilty” spouse alimony. Although a range of bad behavior may cause a spouse to lose alimony, adultery is a common example.

Proving adultery may be especially beneficial for high-earning spouses. For these individuals, alimony may be quite high – and it can prove burdensome in the years following a divorce. As a general rule, it always makes sense to pursue the best possible financial goals after a divorce. Alimony represents only one aspect of a divorce, and you might struggle with additional burdens such as child support and property division.

How Do I Prove Adultery in a North Carolina Divorce?

According to North Carolina law, you have the right to request a trial to prove your ex’s adultery. A jury of your peers may decide the outcome of this trial. Even though adultery is a criminal offense in North Carolina, this is not a criminal trial. Instead, it is a civil trial and has a lower “burden of proof.” In a criminal trial, you must establish the defendant’s guilt “beyond reasonable doubt.” In a civil trial, you only need to establish this guilt with a “preponderance of evidence.”

While there is some debate about what “preponderance of evidence” means, most courts agree that it represents a likelihood of guilt higher than 50%. In other words, you must convince the jury that the affair probably happened. How exactly can you prove this? Various forms of evidence may be helpful:

  • Screenshots
  • Text messages
  • Social media posts
  • Witness testimony
  • Private detective findings
  • Financial records
  • Photographs
  • Video footage
  • Phone data

Compelling evidence is crucial in this situation. If you are serious about proving adultery, you cannot simply rely on “he said, she said” testimony. The burden of proof might be lower than a criminal case, but it still requires convincing evidence. Some evidence may be completely inadmissible, such as hearsay. Note that judges can consider marital misconduct that occurs after the date of separation if it supports allegations of the same misconduct during the marriage. For example, your ex might continue to meet with an illicit partner after you separate.

Do I Get More Alimony if I Prove Adultery in North Carolina?

You may receive more alimony if you prove that your spouse engaged in an adulterous relationship during the marriage. Specifically, family courts in North Carolina must award you alimony if your ex engaged in an affair.

Can I Eliminate Alimony by Proving Other Misconduct?

The term “marital misconduct” encompasses numerous acts – not just adultery. For example, you might also eliminate your alimony obligations by proving substance abuse. Speak with your lawyer to learn more about what might qualify as “marital misconduct” to eliminate alimony.

Your Ex Might Agree to Give Up Alimony

You may not need to prove adultery in court. As long as you have overwhelming evidence, your spouse might agree to give up their access to alimony without a fight. This would be an intelligent decision on their part, as fighting a hopeless battle in court would be needlessly expensive for them. Faced with this unwinnable battle, an adulterous spouse might agree to give up their right to alimony through mediation or collaborative law. In this informal negotiation process, you can present the evidence you have collected and give your ex the opportunity to willingly give up alimony. Often, this is enough to eliminate your support burdens.

Prove Adultery with an Experienced North Carolina Divorce Lawyer

Proving adultery can be beneficial, but it can be challenging. To discuss your next steps, speak with an experienced divorce lawyer in North Carolina. Choose Arnold Smith, PLLC, to learn more about limiting your financial obligations as you approach divorce. Throughout the years, we have helped numerous spouses, including high-income and high-net-worth individuals. Book your consultation today to get started with an action plan.

Where Can I Find a Qualified Divorce Attorney in North Carolina?

If you have been searching for a qualified, experienced divorce attorney in North Carolina, look no further than Arnold & Smith, PLLC. Over the years, we have assisted numerous divorcing spouses – including those who are unfamiliar with complicated legal concepts like the burden of proof. Rest assured that you do not need to become a legal expert in order to get divorced in North Carolina. Instead, you can rely on our experience and assistance to end your marriage quickly, effectively, and without undue stress. Book your consultation today to get started.