Adultery Laws and Alimony

By Heather Frances J.D.

Your spouse’s adulterous relationship may bring an end to your marriage, but it is not always a significant factor in the legal process of divorce. Though many states recognize adultery as grounds for divorce, state laws vary, and when it comes to alimony, your spouse’s adultery may or may not be significant to the divorce court.

Grounds

When you file for divorce, you must allege at least one reason – or ground – for the divorce. All states recognize some form of no-fault ground, sometimes called “irretrievable breakdown of the marriage” or “irreconcilable differences.” Many states also recognize adultery or other grounds for divorce, but the definition of adultery varies among the states that recognize it.

Proof

The spouse who files for the divorce has the burden to prove to the court that grounds for divorce exist. If you allege adultery as the ground for the divorce, you must be able to prove the adultery occurred, and your testimony alone likely will not be enough. You may provide witnesses who saw your spouse in a romantic situation with the other person, or you could hire a private detective to investigate your spouse. Photographs or other documentary evidence may also be helpful. If you cannot provide sufficient evidence to prove the adultery, the court cannot grant your divorce based on that ground; you may be able to use your state’s no-fault grounds instead.

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Alimony

State laws also vary on the way adultery affects alimony. In some states, the adulterous spouse may be completely barred from receiving alimony if the adultery was the cause of the divorce, but some states do not have such laws. In those states, the spouse who committed adultery might be awarded alimony, depending on the circumstances. Also in some states, the adulterous spouse may end up paying more alimony than he otherwise would have, so long as the faithful spouse is otherwise entitled to alimony.

Property Division

Proven adultery may affect the court’s division of marital property during the divorce. The faithful spouse may receive more of the couple’s assets or less of their debt if she can prove her spouse committed adultery and that his adultery caused the divorce. Adultery’s impact on property division during divorce varies by state and among judges.

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New York State Divorce Laws When a Spouse Has an Affair
 

References

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The Disadvantages of Pleading No Contest to Adultery

In the context of divorce law, you can "plead no contest" by abstaining from defending yourself against the allegations contained in your spouse’s complaint or petition for divorce. You might do this at trial or in depositions by invoking your Fifth Amendment right against incriminating yourself, depending on your state’s laws. Generally, adultery would have to be a criminal offense in your jurisdiction for your Fifth Amendment right to apply. Alternatively, you might simply decide not to deny your spouse’s adultery grounds when you file an answer to her complaint. In either case, your decision not to challenge her grounds can have a negative effect on your divorce.

Adultery & Divorce in Georgia

If your spouse engages in an extramarital affair and you want to sue her for divorce because of it, you might be more successful if you don’t live in Georgia. The state’s laws regarding adultery are somewhat restrictive, and proving your spouse’s indiscretion might be difficult as well. If you’re successful, however, it can have a significant impact on the outcome of your divorce.

Does Adultery Justify Divorce?

Not only does infidelity lead to discord in a marriage, it often causes spouses to call it quits. If your spouse cheated on you and you're filing for divorce, you may want to list adultery as the reason your marriage came to an end. However, not all states give you this option. While all states permit spouses to file for divorce on no-fault grounds, meaning a spouse does not have to prove misconduct on the part of the other to get a divorce, only some states recognize adultery as grounds for divorce.

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