In North Carolina illicit sexual behavior is defined as as “acts of sexual or deviate intercourse, deviate sexual acts, or sexual acts as defined in N.C. General Statute § 14-27.20(4) (a criminal statute), that were voluntarily engaged in by someone other than the person’s spouse.”
Sexual acts which constitute sexually illicit behavior include the following:
- Cunnilingus
- Fellatio
- Analingus
- Anal intercourse; and
- The penetration, however slight, by any object into the genital or anal opening of another’s body
Proving your spouse has committed acts of illicit sexual behavior can be tough. It is rare a spouse is caught in the act of committing these acts and in most cases, it is proven by circumstantial evidence.
Circumstantial evidence is evidence that infers a fact to be true. For example, if your fingerprints are on a glass, that is circumstantial evidence that you touched it. In illicit sexual misconduct cases, circumstantial evidence could be a spouse and another person seen going into a hotel room at night. You can often get this evidence admitted into court by hiring a private investigator.
In North Carolina, adultery is presumed if you can prove that both persons had the “inclination” and “opportunity” to commit illicit sexual acts. Your spouse can rebut that presumption, meaning they can put on evidence to show the conduct did not occur.
What is Inclination?
Inclination is the expression of feelings of love and affectionate behavior between the spouse and the third party. Examples of inclination include the following:
- Hugging, kissing or other intimate behavior;
- Emails or text messages with sexual content or expressions of love;
- Photographs; and
- Records of gifts or expenditures of money on the third party.
What is Opportunity?
Opportunity is some situation or circumstance in which the party and the paramour are alone and unsupervised; and the setting would suggest lustful or sexual activities. Examples of opportunity include the following:
- Spending time together in a hotel;
- Visiting an empty beach house; or
- Spending a night together.
How Can Illicit Sexual Behavior Impact Alimony?
If a dependent spouse (the person asking for alimony) committed an act of illicit sexual behavior during the marriage and prior to the date of separation, the court is will not award that spouse any alimony.
If the supporting spouse committed an act of illicit sexual behavior during the marriage and prior to the date of separation, the court may order that alimony be awarded to the dependent spouse.
If the court finds that the dependent and supporting spouse each committed an act of illicit sexual behavior, then alimony may be awarded or denied in the court’s discretion after a consideration of the circumstances.
Any illicit sexual behavior that was condoned by the other party will not be considered by the court.
Having an experienced and knowledgable attorney helping you through any case that has issues of illicit sexual conduct could be a make or break for your case! At Miller Law Group we can help!
