Proving adultery can significantly impact a North Carolina divorce. Since it’s up to the other spouse to present evidence of adultery, knowing how to prove it is very important.
If you suspect adultery, talk to a family and divorce lawyer in Charlotte, NC about your situation.
How Do You Prove Adultery in North Carolina?
To prove adultery in North Carolina, you must present credible evidence that the other spouse engaged in illicit sexual activity with another person. Evidence may include witness testimony, emails, texts, photographs, admissions, evidence of whereabouts and other information.
North Carolina Divorce Laws on Adultery
With an understanding of how to prove adultery, it’s important to know how proving adultery may impact your divorce case. If you can prove adultery, you may invoke N.C.G.S. § 50-7 to seek a divorce from bed and board.
A divorce from bed and board may allow you to receive key rulings to your benefit, including the other spouse’s loss of inheritance rights, custody and support awards and property division.
In addition to divorce from bed and board, adultery may greatly impact an award of alimony. It is consequential for an alimony award whether the party committing adultery is the dependent or the non-dependent spouse.
Other notes:
Adultery is no longer grounds for absolute divorce in North Carolina. See N.C.G.S. § 50-5, repealed; Cunningham v. Cunningham, 65 S.E.2d 375 (N.C. 1951).
Broom v. Broom, 41 S.E. 673, (N.C. 1902) (Spouse is competent to testify, refuting allegations of adultery brought by the other spouse. The court weighs the credibility of witnesses).
What Is the Definition of Adultery for a North Carolina Divorce?
North Carolina divorce law doesn’t explicitly define adultery. It defines illicit sexual behavior for alimony. The definition broadly includes voluntary acts of sexual or deviated sexual intercourse with someone other than the spouse. (N.C.G.S. § 50-16.1A). Similarly, North Carolina criminal law characterizes adultery as a lewd and lascivious association, including bed and cohabitation.
Proof of Adultery in a North Carolina Divorce
Proof of adultery in a North Carolina divorce may come in the form of direct or circumstantial evidence. Direct evidence is the strongest. That may include text messages, emails, photographs, or videos that establish the relationship. Indirect evidence may include information about a person’s whereabouts. For example, a private investigator may identify the person’s vehicle at someone else’s house overnight.
Building your case and the discovery process
Wouldn’t it be easier if the other spouse would just admit they had an affair?
As part of pre-trial proceedings, you may engage in discovery. The discovery rules are governed by the North Carolina Rules of Civil Procedure. Rule 26 allows the parties to engage in discovery including depositions and requests for admission.
You can depose the spouse, the person they are suspected of cheating with, and anyone else who may know the situation. A deposition records testimony under oath. If the person tells a different story in court on the witness stand, you can reference the deposition testimony. In addition, you can send the other spouse requests for admission.
Requests for admission are explained in detail in Rule 36. As part of requests for admission, you can ask for admission of the genuineness of documents. In other words, you can ask if text messages are true and accurate. Requests for admission can provide helpful agreement from the spouse that text messages or emails are true. This can make it easier to have the evidence admitted at trial, and it can make admitted evidence more compelling.
Another important part of the discovery process for proving adultery is document production.
You may ask the other spouse and third parties to produce records that prove adultery. Rule 45 governs the use of subpoenas in civil proceedings, including divorce. Subpoenas can help produce documents to prove adultery.
Admitting evidence of adultery in divorce
Once you have gathered your evidence, you must prepare to admit the evidence in court. The North Carolina Evidence Code governs the presentation of evidence. For evidence that may be relevant to providing adultery, you should be mindful of the hearsay rule, and exceptions for admissions of a party opponent. You must understand how to authenticate evidence for court admission (Rule 901), ensuring that the appropriate parties are summoned to court for this purpose. You should be prepared for rules regarding the admission of records and rules for contents of writings, recordings and photographs.
Preparing your proofs must begin long before your trial date. Conducting discovery, gathering records and serving subpoenas on necessary parties for court can take significant time. Work with a lawyer early in your case to secure this critical evidence.
Are Text Messages Proof of Adultery in North Carolina?
Text messages may be enough to prove adultery in a divorce proceeding. A text may be an admission from a spouse, either directly or through insinuation, that they committed adultery. It depends on the statements and all the circumstances. Texts may be presented along with other evidence, if available.
Talk to a Charlotte Divorce Lawyer
The best way to prove adultery in your case is to work with a lawyer to investigate and build the evidence. For a confidential consultation about your case, contact us at Remington & Dixon, PLLC at 704-247-7110 or online.
