For various reasons many persons with a basically homosexual orientation enter a heterosexual marriage. Some people want to raise children within a marriage. Many people feel that society expects them to marry, whether they want to or not. Perhaps some men and women feel that marriage will "cure" them of their same-sex attractions, although modern medical evidence shows that most people can not change their sexual or affective orientation, that is, which sex they desire to love and be loved by. Marriages often dissolve when one spouse's homosexuality becomes evident.

Homosexuality and homosexual conduct are not grounds for divorce in North Carolina. There are only two grounds for divorce: incurable insanity on the part of one spouse, or separation of the parties for a period of one year.

In almost all divorce cases the husband and wife voluntarily agree to separate and live apart for one year before the divorce action is filed. However, North Carolina allows a court-ordered separation, called a "divorce from bed and board," if the injured spouse proves to a judge that she or he suffered "indignities" that made life "burdensome."

When a marriage is dissolved, the husband and wife's joint assets are divided equally between them. It is irrelevant whether one spouse or the other is at fault in the breakup of the marriage. Fault is relevant in the equitable distribution of marital assets only if the fault or misconduct somehow affected the economic condition of the marriage.

On the other hand, fault, even "noneconomic fault" such as sexual relations outside the marriage, is relevant to alimony. If a spouse proves that she or he is "actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support," then she or he is entitled to alimony under some circumstances. One of the variety of circumstances that entitles the dependent spouse to alimony is that the supporting spouse "participated in an act of illicit sexual behavior." See N.C.G.S. § 50-16.3A. The same statute says that the dependent spouse will be denied alimony if she (he) participated in an act of illicit sexual behavior, which is defined in N.C.G.S. § 50-16.1A(3)a to include "deviate sexual acts" and "deviate sexual intercourse," as well as cunnilingus, fellatio, analingus, anal intercourse, and the insertion of an object into a person's anus or vagina, whether the act is homosexual or heterosexual.

Prior to October 1, 1995, North Carolina law did not require the termination of alimony if the dependent spouse was in a same-sex relationship. Now, however, N.C.G.S. § 50-16.9 provides that cohabitation as well as remarriage will terminate the alimony. The new amendment to the statute says that

 "cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship ... or a private homosexual relationship."

Heterosexual spouses and their attorneys sometimes claim that the homosexual or bisexual spouse committed fraud by failing to disclose his or her sexual orientation. Others have claimed that the heterosexual spouse is entitled to damages because of intentional or negligent infliction of emotional distress. We are not aware that any of these cases have made it up to the appellate courts. But because of the potential for damage awards even when the injured spouse cannot get alimony, heterosexual spouses who can claim innocence on their part often end up with more than half of the marital property.

Most lawyers advise their bisexual clients to enter into a separation agreement and property settlement before disclosing their sexual orientation to the spouse. However, a deliberate withholding of such information could allow the heterosexual spouse to overturn the settlement agreement. The decision of what to tell the heterosexual spouse and when to do so should be made only after careful consultation with a lawyer who is familiar with domestic law as it relates to homosexual and bisexual persons.