There is, perhaps, no greater betrayal to a marriage than adultery. Marriages that end in divorce due to adultery have the potential to leave both sides permanently wounded and embittered. But it’s possible to recover from this exquisite pain and to be healthy and happy again, and the first step is self-protection—seeking out knowledge about your rights and obligations in the divorce proceedings.
This article will explore the possible impact of adultery on the divorce process and, specifically, on alimony. If you have any questions after you read this article, you should speak with an experienced family law attorney for advice.
Michigan is a purely “no fault” state when it comes to divorce. In order to obtain a divorce, one spouse need only show that there are “irreconcilable differences," which means the marriage is so badly damaged that it can’t be saved.
Because Michigan is a no-fault state, it doesn’t matter who’s at fault for the divorce. The judge won’t listen to evidence about marital misconduct like adultery. In fact, the person asking for divorce can’t even mention anything other than the breakdown of the marriage in the divorce complaint. This saves time, prevents mudslinging in the courtroom, and allows the spouses to heal more quickly from their emotional wounds.
But does adultery have any impact on the divorce proceedings? Michigan defines adultery as “the sexual intercourse of 2 persons, either of whom is married to a third person.” Adultery is a felony-level crime in Michigan, but it can only be prosecuted if the spouse who is being victimized by the adultery files a criminal complaint within a year of the offense.
In reality, prosecutions for adultery are uncommon.
Alimony, which is technically known in Michigan as “spousal support” or “maintenance,” is the payment of money from one spouse to another, so that both spouses can maintain a relatively equal standard of living after the divorce is final, with the goal of ensuring that neither spouse becomes impoverished. The person who receives alimony is the “obligee” or "supported spouse" and the person who pays is the “obligor” or "paying spouse."
Michigan’s judges have the authority to award alimony in a variety of different forms, depending on the facts of the case. For example, if the paying spouse can’t provide sufficient support, a judge can order the paying spouse to give the receiving spouse part of the paying spouse’s estate and assets from the property division.
Judges can also order temporary or permanent alimony. Permanent alimony is generally awarded in cases involving long-term marriages. Temporary alimony, in whatever amount the court deems proper and necessary, can be ordered while the divorce is pending (meaning, not finalized) if the receiving spouse needs the money to maintain the marital property and make ends meet.
According to the case law issued by Michigan’s appellate (meaning, higher than trial court level) courts, family law judges have to make alimony decisions based on the following factors:
The court must consider all of these factors when making decisions about whether to award alimony, and in what amount and for what duration. The judge’s decision has to be fair and reasonable, and it has to be based on the receiving spouse’s level of need and the paying spouse’s ability to pay. Once alimony is awarded, the paying spouse must continue to pay until the court order is satisfied or until one of the parties dies or the receiving spouse remarries.
Judges in Michigan are not only permitted, but required to look at the issue of fault when analyzing alimony. This may, at first blush, seem contradictory because judges do not consider fault when deciding whether to grant a divorce. However, they must consider it when making decisions about alimony. Adultery, therefore, can be an issue and have quite an impact when it comes to awarding alimony.
For example, if a spouse cheated on the other spouse and not only caused the marriage to end, but also depleted the marital estate by spending lavish sums on gifts for an extramarital lover, then a Michigan judge can certainly consider that evidence when deciding the amount and duration of alimony, or even whether alimony should be awarded at all.
The complete Michigan Compiled Laws
Olson v. Olson, 671 N.W.2d (Mich. Ct. App. 2003)