Barbara Sadler: Can Infidelity Affect Alimony?

Infidelity is only 1 factor that the court may look at when it comes to alimony awards. It is not the only factor. There are other factors the court will consider.

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. One measure of infidelity among couples is the frequency of children secretly conceived with a different partner, leading to non-paternities. Such covertly illegitimate children amount to about 1–2% of newborns in studied populations.

Why Infidelity Happens

The term cheating is one that elicits cringes of fear, gasps of horror. Most likely you imagine that a partner in a committed relationship had sexual intercourse with someone outside of their relationship. But cheating can look like many things to many people. To some it may indeed refer to sexual intercourse only. To others it could be anything from an emotional attachment to another, fantasies of other partners, a kiss. Rather than use the term cheating here, something that makes me think more of copying someone else’s answers on a test and less about who you share your body or heart with and when.

Therefore, Infidelity as any action that violates an implicit or explicit agreement between two people thereby is undermining the relationship. The action may be physical or emotional in nature. Dishonesty is often but certainly not always part of an infidelity. To most couples, infidelity signifies a crisis, and they come in flooded with emotion and fairly deregulated. The infidelity sits in the room like another person or an object that was propelled into the scene like a bomb, ravaging lives. Life becomes polarized into before’s and after’s. Some can repair the damage done; turn an infidelity into an opportunity for growth and reconnection. And some can’t, the loss of trust being irreparable for one, the continued anger and blame intolerable for the other. Everything has a price especially in affairs of the heart. Sometimes you pay in dollars. Sometimes you pay in emotional turmoil. Often you pay in both. For better or for worse, alimony, infidelity and divorce are often hopelessly intertwined.

Emotional Price of Adultery

It goes without saying that having an affair can destroy your marriage. While plenty of couples rebound from infidelity, just as many (probably more) don’t. A spouse’s affair is often the death knell for a marriage. Even in those marriages that survive an affair, a spouse’s cheating destroys the trust that formed the foundation for the relationship. While that trust can be rebuilt, most couples don’t have the stomach or the stamina to try to do so. That’s especially true if their marriage was flagging long before the affair took place. But, adultery does more than just devastate your marriage, and your heart. When adultery leads to divorce, it wreaks havoc on your finances too. Fortunately or unfortunately depending upon which side of the affair you’re on marital infidelity doesn’t have nearly as big of an impact on the financial side of divorce as it once did.

Legal Price of Adultery

Historically, adultery is one of the oldest grounds for divorce. In many countries, adultery was punishable by death. Adultery still is punishable by death in several countries in the Middle East and Africa. It is also still a crime in many states in the United States. But, adultery is rarely, if ever, prosecuted any more. In addition to being a crime, adultery may also form the basis for civil lawsuits in many states. Again, however, such cases are rarely pursued today. When they are pursued, they are even more rarely successful. In today’s world, the place where adultery has its biggest effect is in divorce. Yet, even that effect is waning. When divorce was based on “fault,” proving your spouse was unfaithful was often the key to getting a divorce. If both spouses were faithful, the law didn’t allow you to get divorced, no matter how miserable you were. (That is, of course, unless you could prove that your spouse had done something else that warranted divorce like subjecting you to mental or physical cruelty.) But now that “irreconcilable differences” is recognized as a ground for divorce, you no longer have to catch your spouse in the act in order to end your marriage. Yet, adultery still plays a significant role in divorce.

Effect of Adultery on Divorce

With the advent of no-fault, seeking a divorce based upon adultery became less and less common. While scorned spouses still may get emotional satisfaction from filing divorce papers that publicly proclaim that their spouse cheated on them, there is little legal reason to pursue that kind of claim. Infidelity generally has no impact on custody, child support, or parenting time at all. The only time a spouse’s affair will affect the kid issues in divorce is when the affair itself directly affected the kids.

Dissipation Of Marital Assets

Dissipation is a legal concept that means that one spouse spent marital money for a non-marital purpose. Translated, that means that one spouse spent money on his/her affair partner. While going after your spouse for all the money she/he spent on someone else sounds totally fair, in practice, proving dissipation can be tedious and expensive. Even when your state provides that, once you allege dissipation, your spouse must prove that he didn’t dissipate marital assets. Dissipation is still a tricky legal issue. It often requires you to spend days scouring credit card bills and sifting through boxes of old receipts. Of course, if your spouse has been living a double life for years, the dissipation in your divorce can be significant. The same thing is true if your spouse started living with his/her “sweetie” long ago. In those kinds of cases, proving dissipation can be well worth the effort.

Alimony, Infidelity and Divorce

The one aspect of divorce in which your spouse’s infidelity can still have a sizeable impact is in the area of spousal support. Even still, the impact that it has is still way less than what it had in the past. In a little less than half of the states, your spouse’s misconduct (i.e. adultery) has no impact on alimony whatsoever. It doesn’t affect whether your spouse has to pay alimony, how much s/he has to pay, or how long s/he has to pay it. In a very small number of states, your spouse’s adultery has a huge impact on alimony. Most states, however, consider adultery only as one factor in the decision of whether to award alimony. The laws in several of those states specifically state that alimony cannot be used to punish an adulterous spouse. The adultery is simply one of many factors a court may or may not decide to consider when deciding whether to award alimony.

Adultery as Legal Ground for Divorce

In Utah, divorcing spouses may seek a “no-fault” divorce or a “fault” divorce. In a “no-fault” divorce, the filing spouse only needs to show that the marriage has been “irretrievably broken” for at least six months. This basically means that the couple can’t get along anymore and are unable to remain married because of their differences.
For a “fault divorce,” the filing spouse must show one of the following:
• cruel and inhuman treatment (such as physical or mental abuse)
• abandonment for at least one year
• incarceration for at least three consecutive years, or
• adultery.
Regarding the ground of adultery, Utah law defines adultery as a married person having sexual intercourse with a person who is not his or her spouse. If you’re seeking a divorce based on adultery, you must be prepared for a higher-conflict divorce case. The law requires that you provide evidence of the adultery from a third-party, such as a private investigator. Higher conflict divorce cases often cause more emotional harm on the parties, especially when children are involved. As a result, no-fault divorce is a good alternative, even when there has been adultery. During the divorce process, one spouse may ask the judge to award financial payments to help support that spouse during and/or after the divorce. The parties may agree on the amount to be paid, or the couple may have a pre-nuptial or post-nuptial agreement that sets out alimony payments. If there is no agreement between the parties, the judge will look at many different factors and decide if there should be an award and the amount of the payment. These payments may be called “alimony,” “maintenance,” or “spousal support.”
In making a decision about alimony, the court will look at the following factors:
• income and property of both spouses
• length of the marriage, including any time the couple lived together before and after the marriage
• age and health of both spouses
• present and future earning ability of each spouse, including reduced ability of one spouse due to delaying of education or career opportunities, and inability to earn due to age or absence from workforce
• need for one spouse to gain education or training, and how long this might take
• acts that prevent a spouse’s ability to gain employment or increase earning ability (for example, mental or physical abuse)
• where children from the marriage live
• any need to care for family members other than children
• any need to pay for exceptional expenses, such as schooling and medical care for children
• tax consequences to each spouse resulting from paying or receiving alimony
• what property was awarded during equitable distribution
• loss of health insurance due to the divorce
• contributions and services by the spouse seeking alimony, such as homemaker contributions, and
• any wasteful dissipation use of marital property by either spouse, or unfair transfer or hiding of assets.
When the judge looks at these factors, there is no fixed formula used to make the decision. Both parties will present evidence to the judge in support of their case, and the judge will make the decision based on an assessment of the entire set of circumstances.

Causes and Risks of Why Married People Cheat

There are many reasons why married people cheat. Upwards of 40% of married couples are impacted by infidelity, and despite the high percentage, most people even those who stray will say that cheating is wrong. Risk factors such as personality disorders and childhood issues, as well as opportunities such as social media and poor boundaries, can increase the chance that one of these reasons will actually lead to some type of affair. Frustration in the marriage is one common trigger; the cheater may make several attempts to solve problems to no avail. Maybe they had second thoughts about getting married or they were jealous over the attention is given to a new baby and neither had the skill set to communicate these feelings. Perhaps the straying spouse has childhood baggage neglect, abuse, or a parent who cheated that interferes with his or her ability to maintain a committed relationship. Less often, the cheater doesn’t value monogamy, lacks empathy, or simply doesn’t care about the consequences.

Motivations Differ by Sex

Men are more likely to have affairs than women and are often seeking more sex or attention. Men express their love in a more physical way they often don’t have the perfect feeling words for their wives. So sex becomes an important path to connection and intimacy. If men aren’t sexually satisfied (for instance, if their spouse declines sex often), they take that rejection to heart, and it can easily translate to feeling “unloved.” In fact, men are more likely than women to cheat due to a feeling of insecurity. When women cheat, they’re often trying to fill an emotional void. Women frequently complain of disconnection from a spouse, and of the wish to be desired and cherished. Women are more likely to feel unappreciated or ignored, and seek the emotional intimacy of an extramarital relationship. An affair is more often a “transitional” partner for the woman as a way to end the relationship. She is seriously looking to leave to her marriage and this other person helps her do just that. That’s not to say that sexual satisfaction isn’t a primary driver of affairs for wives as well as husbands. In one study of men and women who were actively pursuing or involved in extramarital affairs, both genders said they were hoping to improve their sex lives because they felt their primary relationship was lacking between the sheets. Similarly, boredom with the marital relationship may lead both men and women to cheat.

Causes and Risk Factors

There’s a myriad of reasons or causes why men or women may engage in an extramarital liaison, but certain risk factors either with one of the individuals or the marriage as a whole increasing the odds it will happen.

Risk Factors With an Individual

The general rule is that it takes two, or in this case, to mess up their marriage with an affair, but there are certainly exceptions. Individual factors that may increase the chance of infidelity include:
• Addiction: Substance abuse issues, whether it’s addiction to alcohol, drugs, gambling, or something else, are clear risk factors. Alcohol, in particular, can reduce inhibitions so that a person, who wouldn’t consider having an affair when sober, may cross the line.
• Previous Cheating: The saying “once a cheater, always a cheater” is more than an old wives’ tale. Those who were involved in an extramarital sexual relationship were three times more likely to become involved in extramarital relationships in their next relationship.
• Personality Disorders and Psychological Issues: People who have strong narcissistic traits or personality disorders such as narcissistic personality disorder or antisocial personality disorder are more likely to cheat. With narcissism, an affair may be driven by ego and a sense of entitlement. In addition to being self-centered, people with these disorders often lack empathy, so they don’t appreciate the impact of their actions on their spouse. The particular psychological issues or personality traits that raise the risk of adultery in marriage may differ between the sexes.
• Mental Illness: Some mental illnesses, such as bipolar disorder are a risk factor for cheating in marriage.
• Childhood Issues: Having a history of childhood trauma (such as physical, sexual, or emotional abuse or neglect) is associated with a higher chance that a person will cheat (if he or she has not addressed the trauma and has unresolved issues).
• Sex Addiction: Certainly, sex addiction in one partner increases the chance that they will be unsatisfied with the physical aspect of their marriage and look elsewhere.
Risk Factors with the Relationship
Problems in the marital relationship can also be a risk factor for cheating. Some of these include:
• Lack of communication
• Emotional and/or physical disconnect
• Low compatibility (people who married for the wrong reasons): Low compatibility can lead to a sense of “buyer’s remorse”
• Domestic violence and emotional abuse
• Financial pressures
• Lack of respect