Judges have a good deal of leeway in deciding what to do about marital fault and defenses when they are proven in court. Traditional sex roles are rapidly changing in some ways but not in others, and judges react differently to the behavior that constitutes marital fault. Some think fault is very important, but others do not. Marital fault relates to alimony, not equitable distribution, which is the division of marital property.
What Are the Marital Fault Grounds?
A spouse commits marital fault if he or she abandons the family, commits adultery, “maliciously turns the other out of doors” or “by cruel or barbarous treatment endangers the life of the other.” If a spouse “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome” that is also marital fault. The last ground of marital fault, known as indignities, is a catchall for bad behavior generally. It occurs when a spouse “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.” NC Gen. Stat. §50-7.
Consequences of Marital Fault
Marital fault is not a requirement for alimony. But if someone commits marital fault, the judge can financially penalize the person receiving or paying support. In cases of adultery, the financially-dependent spouse who cheated cannot receive alimony, and the supporting spouse who is the bread-winner must pay alimony if he or she cheats. The policy is based on the historical tradition of an innocent dependent spouse who was left financially stranded by the other, who left for greener pastures with another romantic interest, for example.
What is a Defense to Marital Fault?
A defense means that you can be shielded from the consequences the marital fault that you committed. A defense excuses the bad behavior (i.e., the marital fault) and gives the spouse at fault a “clean slate” legally. From our example above, if you are an adulterous supporting spouse without the legal defense of condonation, you are automatically required to pay alimony. The only remaining questions at the point is the amount of alimony to be paid, and for how long.
The Defense of Condonation
Condonation, condoning bad behavior, is as a defense to a spouse’s marital fault. Black’s Law Dictionary defines condonation as “conditional remission or forgiveness, by one of the married parties. . . the condition being that the offense shall not be repeated.” If you forgive your spouse for having an affair, for example, you do so on the condition that he or she never cheat again. Critics of condonation argue that it discourages reconciliation because the victim of the fault can be penalized for trying to save the relationship. On the other hand, the policy makes sense when you consider a 25-year-marriage, and the prospect of arguing about an affair that happened 21 years ago. Although the law delves into the reason for the separation, it does not delve into the marriage.
How Do You Prove Condonation?
To have the benefit of the forgiveness, the condonation defense, the spouse at fault must first prove that the innocent spouse knew that the misconduct occurred. It isn’t enough that he or she suspected the misconduct happened. The second requirement of condonation is to show that the innocent spouse voluntarily chooses to continue or resume the marital relationship. This is shown in one of two ways. A spouse can directly communicate forgiveness, such as writing a letter or sending an e-mail. Or, forgiveness can be shown when the innocent spouse voluntary engages in sexual intercourse after knowing about the marital fault. But isolated acts of sexual intercourse are not enough to give a spouse the defense of condonation.
Recent Condonation Case
On December 18, 2018, the NC Court of Appeals made a ruling about marital fault and defenses to it in Gilmartin v. Gilmartin. The husband had an addiction to pornography and communicated with women online. Multiple times, he denied doing these things. When his wife discovered that he was in fact doing these things again, he admitted doing them and promised her that he would go to counseling. He continued the behavior and stopped going to counseling. When he argued that she had condoned his behavior, the Court of Appeals agreed with the trial court, that she did not condone his “continuing ‘use of pornography and online sexual solicitations’ because Husband ‘deceiv[ed]’ her into believing he had ceased the behavior.” Without knowing about the behavior, she couldn’t forgive him for it.