Certified Family Law Specialist
If you are a dependent spouse who is contemplating separation, North Carolina law sets a clear guideline to preserve your right to alimony: do not engage in any sexual activity outside the marriage until you are separated. If you do, or even put yourself in an ambiguous situation, you will damage yourself substantially.
North Carolina law provides that alimony shall not be awarded if the dependent spouse case engaged in “illicit sexual behavior” prior to separation. N.C. Gen. Stat. §50-16.1A(3)a. In the recent case of Romulus v. Romulus, the Court of Appeals applied this statute to bar alimony to a dependent spouse who had two ambiguous sexual encounters prior to her separation.
The Romulus boyfriend testified that, on two occasions, he either penetrated the dependent spouse with his finger, or touched her with his penis, but did not have intercourse because he was impotent.
The trial court and the Court of Appeals held that the boyfriend’s testimony established that the dependent spouse had engaged in illicit sexual behavior, and thus was barred from receiving alimony. Even more, the Court held that, because the testimony established both sexual “inclination” and “opportunity” on her part, the dependent spouse could be presumed to have engaged in sexual intercourse.
Although the dependent spouse’s conduct in Romulus was ambiguous, North Carolina law and the Court’s application of that law were not. To preserve the right to alimony, dependent spouses must not engage in any sexual conduct with outside parties prior to separation, and must avoid situations that could be characterized as demonstrating sexual inclination and opportunity.