Can Unfaithfulness Be Brought Up in Divorce Court in Arizona?

by Elizabeth Rayne
In a divorce from a traditional marriage, fault generally does not matter.

In a divorce from a traditional marriage, fault generally does not matter.

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Arizona is a no-fault divorce state, meaning that the grounds for divorce from a traditional marriage do not place the blame on either spouse. Instead, you may only seek a divorce from a traditional marriage if the relationship is irretrievably broken. With few exceptions, you cannot bring up unfaithfulness during the divorce proceedings. The state also recognizes the special category of covenant marriages, which allow couples to use unfaithfulness as grounds for dissolving the marriage.

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Traditional and Covenant Marriages

In Arizona, the grounds you may assert for divorce depend on whether or not you are in a traditional or covenant marriage. While most couples pursue a traditional marriage, Arizona law also recognizes covenant marriages, which require the couple to take additional steps before marrying or divorcing. The parties to a covenant marriage essentially need to prove that they believe marriage is a life-long commitment. Before entering a covenant marriage, the couple must complete pre-marriage counseling; indicate on the marriage license that they want to enter into a covenant marriage; and sign an affidavit which states that the couple understands what a covenant marriage involves. Unlike a traditional marriage in Arizona, couples may only divorce from a covenant marriage for limited, specified reasons.

Traditional Marriage Divorce

For traditional marriages, Arizona is a no-fault state so the marital misconduct of either spouse is not relevant when seeking a divorce. The state allows divorce from a traditional marriage solely for the reason that the marriage is irretrievably broken. The fact that one spouse was unfaithful does not matter and cannot be asserted as a ground for obtaining a divorce. The only fact that matters is whether there is a chance the couple wants to continue the marriage.

Divorce Decree

For the most part, Arizona courts cannot consider marital fault in determining the terms of the divorce decree for a traditional marriage. When it comes to financial settlements, including alimony, child support and property division, the courts may consider the financial circumstances of each party, but are completely barred from considering marital fault. Whether or not your spouse committed adultery will have no effect on the financial settlement. The state legislature attempted to change this rule in 2009, but the bill failed in the senate. When determining custody issues, the courts make the determination based on what is in the best interest of the child. If you can show that your spouse's unfaithfulness adversely affects the welfare of the child, such as acts of adultery committed in front of the children, then you may be permitted to bring up the marital misconduct in court.

Covenant Marriage Divorce Grounds

A number of fault-based grounds are available for couples seeking divorce from a covenant marriage, including adultery. Simply alleging that the marriage is irretrievably broken is not enough to obtain a divorce from a covenant marriage. Instead, in cases where one spouse was unfaithful in a covenant marriage, the other spouse must provide evidence that adultery occurred -- the issue of unfaithfulness may be brought up in these divorce proceedings.