Spousal infidelity, referred to as adultery, continues to be recognized as a basis for divorce in Pennsylvania. If your spouse has been unfaithful, the degree to which you will be successful in obtaining a divorce based on that behavior will depend on whether you can prove the existence of the affair. Further, although the court is not allowed to take into account marital fault when making property determinations, adultery is one factor the court considers when deciding whether the cheating spouse should receive alimony.
Pennsylvania recognizes both fault and no-fault grounds for divorce. Adultery is one of the enumerated fault grounds, and filing under this ground requires proof of the affair by the alleging spouse. For this reason, adultery is used less frequently than the no-fault ground of irretrievable breakdown of the marriage. However, filing under irretrievable breakdown requires the parties to live separate and apart for a period of time. In contrast, divorces filed on the basis of adultery may proceed immediately without separation.
Proving that your spouse had an affair requires more than a bare allegation. Your claim must be corroborated by witness testimony or physical evidence. This might include a statement by a private detective or a telephone recording confirming the relationship. Circumstantial evidence may also be helpful. This might include records showing purchases supporting the affair, such as jewelry or tickets for travel.
Effect on Property
By law, judges in Pennsylvania are not allowed to consider adultery when deciding how to divide property as part of a divorce. Instead, the court will first classify the property as either separate or marital, with marital assets generally including items acquired during the marriage that are not the gifts or inheritance of one spouse. Pennsylvania is an equitable distribution state, which means marital property will be divided between you and your spouse on the basis of what is "fair," which is not necessarily 50/50, by taking into account a variety of factors, such as your individual needs, standard of living during the marriage, and contributions each spouse made to improving the value of marital property.
Unlike property determinations, a court may consider the marital misconduct of either spouse when deciding whether to award alimony in Pennsylvania. This is true regardless of whether the divorce was filed on fault or no-fault grounds. However, marital misconduct, including adultery, is one of 17 factors a judge may consider when awarding alimony and each factor need not be given equal weight in the analysis. Factors to be taken into account include the age and health of you and your spouse; any economic sacrifices you made during the marriage to further the career of the other spouse; and the earning capacities of both parties. Because the purpose of alimony is to ensure a standard of living similar to that enjoyed during marriage, a judge could be persuaded to award alimony to an adulterous spouse who made significant economic sacrifices, such as being a homemaker, although it may not be easy to convince a judge of this.