# Adams v. Adams

> Court of Appeals of North Carolina · December 20, 1988 · 92 N.C. App. 274

URL: https://www.frixlaw.com/law-library/cases/9621048

## Case

- **Full name:** Janet Walker Adams v. Litz Edward Adams
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 20, 1988
- **Citations:** 92 N.C. App. 274; 374 S.E.2d 450; 1988 N.C. App. LEXIS 1038
- **Precedential status:** Published
- **Opinion:** Concurrence by Greene
- **Judges:** Becton, Eagles, Greene
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

Judge Greene
concurring.
I concur in the majority’s decision and agree with the majority’s statement that, “voluntary sexual intercourse by a spouse with a third party during the period of separation required by Section 50-6 is adultery as contemplated by Section 50-16.2(1), and is a ground for alimony.” I write separately to dispel any implication that such adultery will give rise to an action for alimony even where the parties have executed a valid separation agreement waiving all alimony rights under Section 5046.6(b) which states, “Alimony, alimony pendente lite, and counsel fees may be barred by an express provision of a valid separation agreement so long as the agreement is performed.” N.C.G.S. Sec. 5046.6(b) (1987); see Crutchley v. Crutchley, 306 N.C. 518, 524 , 293 S.E. 2d 793, 797 (1982) (approving contractual release of alimony rights).
Section 5046.6(b) permits spouses to agree privately that any ground for alimony — including adultery occurring before or after their agreement — shall not entitle the non-offending spouse to alimony so long as the agreement is performed. See generally S. Sharpe, Divorce and the Third Party: Spousal Support, Private Agreements, and the State, 59 N.C.L. Rev. 819, 844-47 (1981) (adultery will not affect support provisions of separation agreement absent specific contrary provision in agreement); cf. N.C.G.S. Sec. 31A-1(a), (b) (1984) (spousal rights in other marital contracts voided by adultery only if adultery has not been “condoned”). Adultery does not itself void a valid alimony waiver since the only possible purpose of Section 5046.6(b) is to permit alimony waivers where grounds for alimony (such as adultery) may exist. Thus, the waiver provision of Section 5046.6(b) complements the statutory bar of adultery under Section 5046.6(a).
*282 Furthermore, an otherwise valid separation agreement barring alimony under Section 50-16.6(b) does not run afoul of the requirement in Section 52-10(a) that all contracts between spouses must “[not] be inconsistent with public policy.” N.C.G.S. Sec. 52-10(a) (1984) (may assert valid marital contract as plea in bar in any action). Section 5046.6(b) is itself another of the Legislature’s public policy “bright-lines” noted by the majority in this sensitive area. Section 50-10(a) presumably would not permit a plea in bar based on a spousal agreement which actually promoted any of the grounds for alimony specified in Section 50-16.2. N.C.G.S. Sec. 50-16.2(l)-(10) (1987). However, a valid release of one’s legal right to alimony no more promotes the grounds giving rise to alimony than does the valid release of a wrongful death claim against a drunken motorist promote drunken driving. To interpret our statutes differently would bar any individual from agreeing to forego civil remedies where the State has enacted criminal sanctions.
Therefore, irrespective of whether the separation agreement is approved by the court, Section 50-16.6(b) and Section 52-10(a) permit the assertion of a valid contractual alimony waiver as a plea in bar in any action concerning alimony. Accordingly, while I agree with the majority’s statement as written, I reject any implication that our courts may ignore a valid separation agreement waiving all alimony rights so long as the agreement is performed — even those rights arising from a spouse’s predivorce adultery.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621048. Public record. Not legal advice.