N.C.P.I.—Civil 815.70

The (state number) issue reads:

“Did the [plaintiff] [defendant]1, (state name of offending spouse),

commit marital misconduct during the marriage [and prior to or on the

date of separation]2 of the plaintiff and the defendant?”

On this issue the burden of proof is on the [plaintiff] [defendant].

This means the [plaintiff] [defendant] must prove, by the greater weight

of the evidence, that during the marriage [and prior to or on the date of

separation] of the plaintiff and the defendant, the [plaintiff] [defendant]

committed marital misconduct.

Marital misconduct3 is

[illicit sexual behavior voluntarily engaged in by the [plaintiff]

[defendant] with someone other than his spouse.4 Illicit sexual behavior

means [acts of sexual intercourse5] [deviate sexual intercourse] [deviate

sexual acts] [cunnilingus] [fellatio] [analingus] [anal intercourse] [the

penetration, however slight, by any object into the genital or anal

opening of another person’s body] voluntarily engaged in by a spouse

with someone other than his spouse.]6 A single act of illicit sexual

behavior is sufficient.]

[involuntary separation as a consequence of a criminal act

committed by the [plaintiff] [defendant] prior to this proceeding.7]

[abandonment of the [plaintiff] [defendant] without provocation.8

One spouse abandons the other when he brings their cohabitation to an

end without the intent9 to renew it and without the consent of the other

spouse.10 (One spouse may abandon the other without physically leaving

the home.11 For example, if one spouse treats the other with such

cruelty12 or neglect 13 or withholds support 14 so that the other spouse is

forced to leave or flee the home, then the offending spouse is deemed to

have abandoned the other.15)]

However, the [plaintiff’s] [defendant’s] abandonment must not

have been provoked by his spouse.16 What constitutes provocation

depends on the facts and circumstances of each case. Ordinarily,

provocation does not exist unless the conduct of the [plaintiff]

[defendant] has been such as would likely render it impossible for his

spouse to continue the marital relationship with safety, health and self-respect.17]

[maliciously turning the [plaintiff] [defendant] out of doors [without

provocation].18 A spouse is turned out of doors when ejected from or

forced to leave the marital home by the other spouse.19 (This may be

accomplished by force or by threat of violence. It may also be

accomplished by cruelty that causes the spouse to leave the marital

home. Cruelty may consist of an affirmative act20 or a willful failure, such

as failing to provide adequate support as required by law.21) (Malice

means hatred, ill will or spite. It also means the intentional doing of an

act which is calculated to cause injury or harm and which is done without

justification or excuse.)

[However, the [plaintiff’s] [defendant’s] conduct must not have

been provoked by his spouse.22 What constitutes provocation depends on

the facts and circumstances of each case. Ordinarily, provocation does

not exist unless the conduct of the [plaintiff] [defendant] has been such

as would likely render it impossible for his spouse to continue the marital

relationship with safety, health and self-respect.23]]

[cruel or barbarous treatment endangering the life of the [plaintiff]

[defendant] [without provocation].24 Whether particular acts constitute

cruelty or barbarous conduct depends on the facts and circumstances of

each case. Factors you may consider include, among other things, the

status of the parties and their sensibilities, social position, refinement,

intelligence, temperament, state of health, habits and feelings, as well

as the character and nature of the acts or violence alleged. Acts of cruelty

or barbarous treatment may be mental, physical or both.25

[However, the [plaintiff’s] [defendant’s] conduct must not have

been provoked by his spouse.26 What constitutes provocation depends on

the facts and circumstances of each case. Ordinarily, provocation does

not exist unless the conduct of the [plaintiff] [defendant] has been such

as would likely render it impossible for his spouse to continue the marital

relationship with safety, health and self-respect.27]]

[engaging in indignities rendering the condition of the [plaintiff]

[defendant] intolerable and life burdensome without provocation.28

Indignities to the person amount to a type of mental cruelty.29 Actual

physical violence, or the threat of it, is not required.30 The acts need not

endanger life or health. The fundamental characteristic of indignities is

that they must consist of a course of conduct or continued treatment

which renders the condition of the other party intolerable and life

burdensome.31 The indignities must be repeated or continued over a

period of time so that they may appear to have been offered willfully and

intentionally, or at least consciously, to the annoyance of the [plaintiff]

[defendant] rendering his condition intolerable and life burdensome.32

Whether the indignities of one spouse render the other spouse’s

condition intolerable and life burdensome depends upon the facts and

circumstances in each case. Factors you may consider include, among

other things, the status of the parties and their sensibilities, social

position, refinement, intelligence, temperament, state of health, habits

and feelings, as well as the character and nature of the indignities

alleged.33

However, the [plaintiff’s] [defendant’s] conduct must not have been

provoked by his spouse. 34 What constitutes provocation depends on the

facts and circumstances of each case. Ordinarily, provocation does not

exist unless the conduct of the [plaintiff] [defendant] has been such as

would likely render it impossible for his spouse to continue the marital

relationship with safety, health and self-respect.]35

[the [plaintiff] [defendant] recklessly spending [his income] [the

income of his spouse.36]

[destroying, wasting, diverting or concealing assets.37]

[engaging in the excessive use of [alcohol] [drugs] so as to render

the condition of the [plaintiff] [defendant] intolerable and life

burdensome.38 Whether the excessive use of [alcohol] [drugs] by one

spouse renders the other spouse's condition intolerable and life

burdensome depends upon the facts and circumstances in each case.

Factors you may consider include, among other things, the status of the

parties and their sensibilities, social position, refinement, intelligence,

temperament, state of health, habits and feelings, as well as the

character and nature of the acts of excessive use alleged.]

[willfully failing to provide necessary subsistence according to the

[plaintiff's] [defendant’s] means and conditions so as to render the

condition of the [plaintiff] [defendant] intolerable and life burdensome.39

“Subsistence” means support, maintenance or livelihood. A spouse's

failure to provide required subsistence is willful when, having the means

to provide necessary subsistence, the spouse neglects or refuses to do

so. (In determining necessary subsistence according to a spouse's means

and condition in life, you may consider earnings, earning capacity, and

holdings of money and other property, if any.40)

The fundamental characteristic of a willful failure to provide support

is that it must consist of a course of conduct or continued treatment. The

willful failure to provide support which renders one spouse's condition

intolerable and life burdensome depends upon the facts and

circumstances in each case. Factors you may consider include, among

other things, the status of the parties and their sensibilities, social

position, refinement, intelligence, temperament, state of health, habits

and feelings, as well as the character and nature of the failure to provide

support.]

Finally, as to this (state number) issue on which the [plaintiff]

[defendant], (state name of offended spouse), has the burden of proof, if

you find by the greater weight of the evidence, that during the marriage

[and prior to or on the date of separation] of the plaintiff and the

defendant, the [plaintiff] [defendant], (state name of offending spouse),

committed marital misconduct, then it would be your duty to answer this

issue “Yes” in favor of the [plaintiff] [defendant].

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the [plaintiff] [defendant].