Affair Impacts on Divorce: Analyzing Legal Ramifications

Infidelity (synonyms include: cheating, straying, adultery (when married), being unfaithful, or having an affair) is a violation of a couple’s assumed or stated contract regarding emotional and/or sexual exclusivity. Other scholars define infidelity as a violation according to the subjective feeling that one’s partner has violated a set of rules or relationship norms; this violation results in feelings of anger, jealousy, sexual jealousy, and rivalry. What constitutes an act of infidelity depends upon the exclusivity expectations within the relationship. In marital relationships, exclusivity expectations are commonly assumed, although they are not always met. When they are not met, research has found that psychological damage can occur, including feelings of rage and betrayal, lowering of sexual and personal confidence, and damage to self-image. Depending on the context, men and women can experience social consequences if their act of infidelity becomes public. The form and extent of these consequences are often dependent on the gender of the unfaithful person.

How Does Adultery Affect a Divorce?

Adultery is grounds for divorce in Utah. However, in order to obtain a Decree of Divorce, you need only establish that you and your spouse have irreconcilable differences. This no-fault divorce law allows parties to get divorced for virtually any reason. Establishing adultery will not help you get divorced faster or otherwise alter the divorce process. Infidelity rarely alters the outcome of a divorce in any significant way. However, when the court divides marital property and awards alimony, adultery may help tip the scales in favor of the non-offending party. Utah courts are instructed to consider all relevant facts and equitable circumstances. In addition, Utah courts are permitted to consider fault when calculating alimony. Adultery may also impact custody and parent-time decisions. Past moral conduct is one of the factors the court may consider in determining who should be deemed the primary custodial parent. Moreover, Utah courts strive to place children in the most stable environment available. New relationships that have not withstood the test of time place the child at risk of further change in the future. Long hours spent away from the marital home may indicate to the court a lack of bond between parent and child and an inability to place the child’s needs above personal needs.

Does Cheating Affect Alimony?

Adultery impacts thousands of Utah marriages each year. Many of these marriages will end in divorce. In many states, adultery can determine whether a spouse is eligible for alimony and can affect property division as well. This article will answer what impact adultery has on a Utah divorce.

What Role Does Adultery Play in a Utah Divorce?

In Utah, adultery is defined as a married person having sexual intercourse voluntarily with someone other than that person’s spouse. Adultery is taken very seriously under Utah law and is a misdemeanor criminal offense. Utah courts will consider adultery when determining whether and how much alimony to award, but it’s not a factor when dividing the couple’s property. If you believe your spouse should not receive alimony because of an affair, you will need to gather evidence to prove that the affair occurred – this can include phone records, credit card or bank statements, and any other evidence that shows your spouse was unfaithful. Proving this in court can be complicated, so it’s best to consult a family law attorney in your area to see if you will be able to prove your spouse’s adultery.

Overview of Alimony in Utah

Often, during a marriage, one spouse becomes financially dependent on the other. Many marriages today have two working spouses, but most still involve some sort of division of labor, where one spouse is responsible for earning more income, while the other spouse is more responsible for taking care of the household or children. During a divorce, Utah courts can order the spouse earning more income to make payments to a financially dependent spouse called alimony.

Utah courts consider the following factors when deciding alimony:
• financial needs of the dependent spouse
• earning ability of the paying spouse
• length of the marriage
• whether the dependent spouse has custody of minor children
• whether the dependent spouse worked for the paying spouse during the marriage
• whether the dependent spouse contributed to the job skills or education of the paying spouse
• standard of living during the marriage, and
• fault of either spouse during the marriage, including adultery or domestic violence.

In longer marriages, Utah courts may choose to equalize the standard of living of the spouses after the divorce. For shorter marriages, courts may try to return spouses to their original standard of living before the marriage. Utah courts can always change the alimony award if there is a substantial change in the spouses’ financial conditions after the divorce.

How Does Adultery Impact Alimony in Utah?

If the judge believes you have proven that your spouse was unfaithful, and that infidelity led to the breakup of the marriage, the court may deny alimony to your spouse. The adultery has to be a major cause for the breakup of the marriage for it to prevent an unfaithful spouse from receiving alimony in the divorce. If your spouse was unfaithful, but you forgave your spouse and continued to live together for a significant time after the affair, the court won’t consider the adultery when deciding alimony. And if you have also had an affair, the court you likely won’t be able to prevent your spouse from receiving alimony because of your spouse’s affair.

What Else Does Adultery Impact?

In Utah, adultery doesn’t directly impact property division in a divorce. If a spouse spent a significant amount of the couple’s money on an affair, however, the court may give the faithful spouse a larger share of the couple’s property to compensate for the lost money. If you believe you should receive a larger share of property because of your spouse’s spending on an affair, you should gather receipts and financial statements to show how and when your spouse spent the marital assets. Utah doesn’t consider adultery when deciding child custody or visitation. The only exception is if the behavior displayed during the affair shows a spouse’s inability to take care of the children.

What Rights Do I Have in Utah if My Spouse Cheats on Me?

Marriages can end in divorce for many reasons, but there are some cases where cheating is the main trigger for the breakdown of the relationship. If your spouse was the one to be unfaithful to you, it isn’t necessarily going to grant you more say or sympathy from the courts in your divorce case.

Alienation of Affection Laws

This type of lawsuit justification falls under “alienation of affection” laws, and Utah is one of six states (along with Hawaii, South Dakota, Mississippi, North Carolina, and New Mexico) left that still has this law. Besides paramours, these types of claims have also been applied to and been made against other third parties, such as therapists, clergy members, or other family members, who perhaps advised for a divorce, or otherwise maliciously interfered in the couple’s marriage. This is a civil lawsuit and would be filed separately from a divorce action. Ascent Law LLC is your divorce and family law attorney that can help you understand if your situation falls under this type of lawsuit. The Utah Supreme Court has said that the reason for this law in Utah is to protect the foundation of a marriage and give rise to the unique bonding that occurs in a successful marriage. Those whose malicious interventions have destroyed marital bonds has been held liable for alienation of affections.

Is Utah a Fault State?

Utah is a Fault State. The issue of whether a court may consider fault as it relates to alimony is now settled law and trial courts are well within their discretion to address fault when calculating alimony. The court may consider the fault of the parties in determining whether to award alimony and the terms thereof. Fault means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
• engaging in sexual relations with a person other than the party’s spouse;
• knowingly and intentionally causing or attempting to cause physical harm to the other party or minor children;
• knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or
• substantially undermining the financial stability of the other party or the minor children.
The plain meaning of the Utah Code Ann. §30-3-5(8)(b)-(c)(i-iv) makes clear that a Court has the discretion to address fault with calculating spousal support and, in fact, the Court may order or withhold alimony and adjust the amount and the term of any alimony ordered based on that wrongful conduct. This would be alleged in your divorce action.

How Do I Prove My Spouse Cheated on Me?

You don’t actually have to have some sort of physical proof of extramarital sex to make this claim; however you would need to show the court that
• the marriage entailed love between the spouses in some degree (loving texts, cards, photos or videos, for example);
• the spousal love was alienated and destroyed; and
• the defendant’s malicious conduct contributed to or caused the loss of affection. You also need to show that the infidelity occurred while you were married and living together (not after a separation).

Evidence of infidelity may be presented publicly in court, which can be damaging enough in its own right. One of the clearest cases in which infidelity can hurt is where a spouse has spent marital assets on his/her paramour. If your spouse was renting an apartment for a fling, you may be rewarded with a larger property judgment, money judgment award, or increased alimony. Moral standards are also a statutory consideration in determining child custody and visitation (also known as parent time) and may be relevant to the extent they affect the children’s best interests. Granted, for cheating to affect the custody determination in a divorce it would likely require a rather serious pattern of actually neglecting the needs of one’s children and/or family for the sake of the affair. The fact that the court can consider moral standards does not mean that it must. The real cost of infidelity in divorce arises long before trial ever begins. Most divorces tend to settle. Settling a divorce case in mediation or through private negotiation can save the parties thousands of dollars and incalculable frustration and anguish. Infidelity can complicate this process, and not just for the offending spouse. It’s no surprise that many people seek redress or compensation when a marriage is ended through the spouse’s infidelity. If a divorcing spouse puts the desire to get back at the cheating spouse above the desire to conclude a divorce, the costs of divorce can rise, and quickly. Divorce is designed to dissolve the marriage, provide for custody of the children, divide up the marital property and debt and position the respective spouses so that they can move forward in their lives as newly single people. Mediation and settlement negotiations can shorten the divorce process by helping couples agree on child custody (if they have children) and divide the marital estate quickly and amicably; however mediation and settlement are only possible if the parties can come to fair and reasonable middle ground, or if one of them simply gives up. Cheating can make an even bigger enemy of the spouse who otherwise might have been fairly easy to work with.

The Impact of an Affair on Your Divorce Case

In Utah, adultery initiates divorce as a considered fault ground. Utah is a “no fault” divorce state. This means neither party needs to prove fault in order for a divorce to be granted. However, a party can allege fault, such as adultery, as grounds for divorce. The benefit of alleging adultery as grounds for the divorce is a question which requires careful consideration. Accordingly, consult an attorney regarding the specific facts of each case.

Building a Divorce Case around Evidence of an Affair

Although an affair used as grounds for a fault-based divorce in Utah, cheating can have little effect on a case if the fact of cheating has not directly impacted the parties’ children or the couple’s finances. However, if the cheating party squandered marital assets while pursuing an affair or if the children were directly impacted by the affair through exposure to one parent’s sexual exploits, these facts can have an impact on custody and support.
• understand the law
• get a sense of what kind of support you can receive
• and custody entitled to you in the divorce.