What You Need to Know About Proving Adultery in Your Marriage in Wilmington, NC

By July 27, 2018 October 12th, 2021 No Comments
How to Introduce Your New Relationship to Your Kids after a Divorce, Wilmington, North Carolina | Speaks Family Law

Adultery is a crime in North Carolina. The actions of an adulterous spouse can have far-reaching impacts on civil matters as well, including your divorce case. In addition to your divorce case, it can affect:

  • Alimony
  • Child custody
  • Property distribution

This article will discuss the effects of adultery and using one form of evidence, text messages, to prove it happened.

The crime of adultery is covered by section 14-184 of the North Carolina General Statutes. However, a prosecutor is not likely to bring charges against a cheating spouse. The real consequences of adultery will most likely concern other aspects of your divorce case.

Adultery committed during the marriage and prior to or on the date of separation has serious effects on alimony. It is considered an example of “illicit sexual behavior” as defined by section 50-16.1A(3)(a) of the North Carolina General Statutes. Under N.C.G.S. 50-16.3A, a dependent spouse who has engaged in illicit sexual behavior is ineligible for alimony. Conversely, a supporting spouse who has engaged in such behavior will be required to pay alimony. Marital misconduct (including illicit sexual behavior) can affect the amount and duration of alimony payments. Your Wilmington divorce lawyer can more fully explain these terms and how they apply in your alimony case.

A parent’s child custody claims may also be affected if adultery is established in court. Judges are required to act in the best interests of children. A parent’s fitness to have custody or visitation rights will therefore be scrutinized. Adultery may show the court that a parent is engaging in reckless or unethical behavior. The court may take action if it believes this behavior is harming the child.

By itself, adultery will likely not have an effect on property and debt divisions between spouses. This can change, however, when adultery affects the financial health of a marriage. An example is where a spouse is spending the family into massive debt to maintain an adulterous relationship. The judge will therefore consider the economic consequences of adultery when it comes to dividing property and debts.

Finally, the torts of alienation of affection and criminal conversation are still very much alive in North Carolina. These actions allow a non-cheating spouse to pursue civil damages against the cheating spouse’s lover. These two claims are similar but require different types of evidence. You will want to ask a Wilmington divorce lawyer about your options in suing the third party paramour.

Proving Adultery

Given the impact of adultery on so many facets of a domestic case, how do you prove it? One form of evidence could be text messages between the spouse and his or her lover. As with emails and other forms of documentation, you should consider subpoenaing the other spouse’s text messages. There are special challenges with text messages, however. For one, most phone carriers will not keep records of these communications forever, or even for a very long time. Federal law concerning electronic communications may also pose problems for subpoenas issued in state court (e.g., in domestic litigation). Remember, also, that in North Carolina there must be an active lawsuit before subpoenas can be served. These complexities make it critical for you to speak with an attorney about obtaining this important evidence.

There are other methods of retrieving text messages which demonstrate adultery. You may serve discovery on the other spouse, including requests for the production of certain documents and information. Your request may include text messages between your spouse and the individual suspected to be the paramour. You can also call the paramour as a witness in court, although doing so presents its own challenges and limitations.

An obvious problem with discovery requests sent to the other spouse is the destruction of evidence. If you’re asking your husband or wife to produce text messages proving adultery, often those messages will end up “lost.” This is one reason to consider the use of subpoenas to the phone carriers. Your attorney may also wish to draft a spoliation letter to the other spouse. A spoliation letter tells the other party not to delete or destroy electronic evidence that could be relevant later. Certainly, this will not prevent the destruction of text messages in all cases. But receiving the letter, especially when the other spouse has an attorney, could help preserve the evidence you need.

If you or your lawyer obtain the text messages, you will need to determine how to use them in court. North Carolina’s Evidence Code has specific and strict rules governing this. There are requirements to, among other things, lay the proper foundation and justify the relevance of the messages. The more information you give your attorney about your evidence – text messages included – the better.


Divorce cases are complex. Adultery can add complexity by affecting spousal support, child custody, property division, and other matters. Numerous rules and statutes control how to obtain and use evidence of adultery, including text messages. If you have engaged in adultery, or believe your spouse has, your interests could be seriously affected. Call a Wilmington family law firm today and speak to an experienced domestic attorney.