Sex is an important part of any marriage. While it is common for desire to ebb and flow over the course of a relationship, when a marriage has become completely sexless, that can cause a lot of problems. If your marriage is sexless—and you don’t want it to be—what does that mean for you if you were to decide to divorce?
You may be wondering if being trapped in a sexless marriage is grounds for divorce. North Carolina is a no-fault state when it comes to absolute divorce. The only requirement for obtaining a North Carolina divorce is to live separately and apart for a year. However, there is still child support, child custody, equitable distribution, post-separation support, and alimony. A sexless marriage could be relevant to finding fault.
Since North Carolina is a no-fault divorce state, why would fault matter?
Even though North Carolina is technically a no-fault divorce state, the traditional fault grounds for divorce are still relevant in certain circumstances. Traditional fault grounds include adultery, abandonment, malicious turning out of doors, indignities, cruel and barbarous treatment, and excessive drug or alcohol use, amongst others.
Fault comes into play particularly when it comes to divorce from bed and board, post-separation support, and alimony.
Divorce From Bed and Board
Despite its misleading name, divorce from bed and board is not actually a divorce! Divorce from bed and board is a form of legal separation.
Divorce from bed and board is not required to meet the separation requirement for an absolute divorce. But divorce from bed and board can come in handy if your spouse is refusing to cooperate.
With divorce from bed and board, a judge can force the spouse at fault out of the marital residence. For example, I once had a client whose cheating husband stalwartly refused to leave the marital home, despite her urging. She could only afford a move into a small, one-bedroom apartment that was not nearly large enough to accommodate her and her four children. Instead, we filed for divorce from bed, and a judge ended up ordering her husband to leave the marital home.
In addition, if you are dependent upon your spouse’s financial support, divorce from bed and board can bolster your claims for PSS/alimony.
Alimony & Post-Separation Support
Alimony is the obligation to financially support an ex-spouse after divorce. Post-Separation Support is, essentially, temporary alimony until alimony claims are settled.
Alimony and Post-Separation Support in a North Carolina divorce is based on a finding of a supporting spouse and a dependent spouse.
When one of the traditional fault grounds is present on the part of the supporting spouse, it can increase the amount of PSS and/or alimony the dependent spouse receives. If the dependent spouse is the at-fault spouse, it can bar them from receiving alimony or PSS, despite its economic necessity.
So is a sexless marriage grounds for fault?
Yes and no. Having a sexless marriage is not specifically articulated as grounds for fault, but in some cases, a sexless marriage could conceivably rise to the level of or contribute to a finding of constructive abandonment. It will be particularly difficult to prove constructive abandonment based on lack of sex alone, though.
What is constructive abandonment?
Marital abandonment is when one spouse brings the cohabitation to an end
• Without justification
• Without consent
• And with no intention of renewing the marital relationship
But it is not necessary for your spouse to have left the marital home to prove constructive abandonment. Instead, constructive abandonment is generally defined as a willful failure of one spouse to fulfill the obligations of a marriage. Essentially, constructive abandonment means that, though he or she might be physically present, your spouse is mentally and emotionally absent from the marriage. Only behavior occurring prior to the date of separation will be considered.
So what does it mean, the obligations of a marriage? Historically, the essential incidents of marriage were precisely defined and centered largely around gender roles. For example, husbands were required to support their wives financially, while wives were required to bear and raise the children and take care of the household.
Fortunately, society has come a long way since then, but many of these essential incidents of marriage still apply, just equally to both parties of the marriage, without ascribing behaviors based on gender. To that end, it is still expected that spouses will support each other, both financially and emotionally, that they will help each other with childrearing, and provide one another with love and affection.
So yes, withholding affection, including sex, could potentially rise to the level of constructive abandonment.
When does withholding sex constitute constructive abandonment?
While no one is entitled to sex, if your spouse willfully refuses intimacy, it could potentially rise to the level of constructive abandonment if the behavior is willful AND beyond the bounds of what could be considered normal in a marriage.
Willfulness
To show constructive abandonment, you must establish that your spouse’s withholding of affection is willful. In order to show willfulness, you will want to have some evidence that your spouse knew the lack of sex was a problem for you. At the very least, you should have discussed the problem with your spouse. If you and your spouse have discussed the lack of sex in your marriage, but your spouse has still refused to work on the problem and continually and repeatedly rejects your advances, it could be willful withholding of sex. Withholding sex out of spite would also be considered willful.
However, if your spouse has been refusing sex because of some kind of medical issue, sexual dysfunction, or side effect from medication, that’s not really willful. Refusal to seek treatment for a medical condition that is suppressing libido, knowing that the lack of sex is troubling to you, could potentially be relevant in showing willfulness, but it would be a stretch.
Beyond that of a Normal Marriage
People’s sex drives vary wildly, and they often change over time. Mismatched sex drives is actually an extremely common marital problem. And sometimes, a lack of sex is actually indicative of other problems in the marriage.
Because the preferred frequency of sex varies so much from couple to couple, the court is not going to base a finding of constructive abandonment on frequency of sex. Instead, the court will be looking at a willful indifference or hostility toward a spouse’s needs.
Your spouse would have to have repeatedly, consistently, and willfully rejected your sexual advances. Periods of celibacy are not uncommon in many marriages, so this rejection most likely will have had to occur over a long period of time before being considered constructive abandonment.
Ultimately, judges have quite a lot of discretion in finding constructive abandonment. Because the line between what is normal in a marriage and what is not normal in a marriage is so fine, if you want to be successful arguing constructive abandonment based on a lack of sex, if possible, you should try to bolster your argument with additional facts showing a lack of participation in the marriage in other ways.
Additional Factors To Consider
If your spouse is willfully and consistently failing to meet your needs in the bedroom, it’s not unlikely that he or she is willfully failing to meet other marital obligations as well.
Has your spouse demonstrated indifference or lack of concern for you and/or your children?
It is possible to show constructive abandonment by showing that your spouse has mentally and emotionally withdrawn from the marriage. A lack of sex is one way to demonstrate that withdrawal, but it can also be established with evidence that a spouse who no longer shows affection and concern for you or your children in other ways.
For example, in Elinwood v. Elinwood, the North Carolina Court of Appeals analyzed the relationship between Cornelia and Everett, finding that Everett was lacking in support and concern for his wife and children during trying times. Specifically, Everett did not drive Cornelia to the hospital, nor did he drive her home after a hysterectomy. And when Everett and Cornelia’s son was hospitalized, Everett only visited him infrequently—not even showing up for Christmas or his birthday. The court held Everett’s lack of concern and constituted constructive abandonment, despite the fact that he was still living with his wife and even sleeping in the same bedroom!
Does your spouse help with childrearing?
Again in Elinwood, the Court described Everett’s complete withdrawal from family life. Everett spent so little time at home and rarely engaged with his children. Essentially, Cornelia was raising their children as a single parent. Supporting your spouse and children—financially, as well as emotionally—is one of the essential duties of marriage. Evidence that your spouse is withdrawing from your children’s lives will help you make a case for constructive abandonment. It can also help you in a custody case, or it may entitle you to a larger share of the marital estate during equitable distribution.
Is your spouse getting his or her sexual needs met elsewhere?
Adultery is a more clear-cut way to show marital fault. If you believe your spouse has cheated on you, that alone would be enough to establish fault. But if you do not have enough evidence to definitively prove infidelity, that evidence might still be relevant to showing constructive abandonment. However, if your spouse has cheated on you in the past and you had already forgiven him or her and moved on, then it can no longer be used as a ground for finding fault.
Does your spouse abuse drugs or alcohol?
Evidence that your spouse drinks excessively or abuses illicit drugs can go toward a finding of fault. A few drinks here and there is certainly permissible, but excessive use of alcohol or drugs, such that it interferes with daily life, is considered a ground for fault.
Has your spouse ever abused you? Has he or she ever subjected you to indignities or such cruel and barbarous treatment?
Evidence of indignities or abuse you have suffered at the hands of your spouse can cause a judge to find your spouse at fault in the breakdown of your marriage.
If you are currently experiencing domestic violence and need someone to talk to, you can always call the confidential National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224.
