Consequences of Adultery in Divorce

At one time, adultery was a more common ground for divorce because one spouse had to prove wrongdoing in a marriage in order to get the divorce. Since the 1970s, when states enacted no-fault grounds, divorce has become easier. Adultery remains a popular ground for divorce, but proving wrongdoing (like adultery) is no longer necessary in most jurisdictions to get the divorce. No-fault grounds are used as an alternative.

The spouse who charges adultery is often angry and wants to strike back at the unfaithful spouse, In some cases, fault grounds avoid the lengthy separation times for no-fault divorces actions, so choosing adultery may be appealing, For these reasons some spouses actually cooperate and have an uncontested divorce under the grounds of adultery just to speed up the process. However, in fault divorce cases, judges do not accept that a spouse cheated without evidence and proof. The plaintiff cannot simply make the allegation without proof. The plaintiff documents his or her case with photographs, witnesses, or a great deal of circumstantial evidence proving infidelity. This situation often makes a fault divorce based on adultery very emotionally challenged.

In more than half of the “fault” states and the District of Columbia consider adultery when awarding alimony.  When adultery ends a marriage, courts are reluctant to order the wronged spouse to pay alimony, especially on a permanent basis. When the unfaithful spouses dissipated marital assets, his or her adultery may also impact distribution of marital property in the divorce.

On the other hand, adultery rarely has an impact on child custody decision unless it somehow has a direct impact on the child. All states base custody on the best interests of the child and try to make sure children have contact with both parents, whether marital fault occurred on not. However, when the unfaithful partner immediately cohabits with someone new, the judge might frown on the child living or spending overnight visitation time in that home until the divorce is final.  As of now, all 50 states and the District of Columbia permit no-fault divorces, which eliminates the need for spouses to find fault to end marriages. Seventeen states have only no-fault grounds; spouses there cannot file for adultery even if they want to, so adultery has no impact on the divorce proceedings in these states.


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