Adultery in West Virginia: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in West Virginia.

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Modern psychologists understand that divorce is one of the most stressful experiences a human being can endure. But when a marriage ends because one spouse committed adultery, the pain you feel because of the loss of your relationship is exacerbated by feelings of heightened suspicion and betrayal.

If you or your spouse has committed adultery during your marriage and you’re anticipating a divorce, one of the best things you can do to make this difficult time a little bit easier is to familiarize yourself with your legal rights and responsibilities.

This article will explain the possible impact of adultery on on the divorce process in West Virginia and a court will consider adultery when making decisions about alimony. If you have any questions after you read this article, you should speak with an experienced family law attorney for advice.

What Role Does Adultery Play in an West Virginia Divorce?

The legal reason for a divorce is known as the “grounds” for divorce. In some states, called “no-fault” states, you don’t need to provide any specific reason for why you want to get divorced. It’s enough to tell the judge that your marriage is so badly broken that it can’t be fixed.

In other states, the courts are allowed to explore the reasons for a divorce. These are called “fault-based” states, because you are allowed to tell the judge why you want to divorce your spouse. For example, if your spouse is chemically dependent and the dependency is destroying your marriage, you could tell the judge about that in a fault-based state.

West Virginia is a hybrid state. You can get a no-fault divorce in West Virginia if you tell the judge that you and your spouse have “irreconcilable differences” (meaning you just can't get along anymore). You can also get divorced for any of the fault-based reasons, which include:

  • voluntary separation
  • cruel or inhuman treatment, which can but doesn’t have to include physical abuse
  • adultery
  • a spouse was convicted of a felony after the marriage
  • permanent and incurable insanity
  • habitual drunkenness or drug addiction
  • desertion, and
  • abuse or neglect of a child.

Note that adultery is a fault ground for divorce in West Virginia. It’s defined in the law as “the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband.” If you or your spouse have committed adultery, you and your spouse can tell the judge about it and obtain a divorce which specifies that adultery occurred.

Bringing fault-based grounds into your divorce might have major ramifications on other areas of your divorce, like child custody. It’s important to discuss your strategy with a family law attorney before making any final decisions.

What is Alimony in West Virginia?

West Virginia’s legal code uses the term “spousal support” to describe alimony, but the two phrases mean the same thing, and for purposes of this article, the word “alimony” will be used.

Alimony is the payment of money from one spouse to another, so that both are able to live separately, at a relatively equal income level, without either spouse becoming impoverished. The paying spouse is sometimes known as the “obligor,” while the receiving spouse is known as the “obligee.” Judges can alimony to be paid all at once (known as “lump sum alimony”) or in regular, periodic installments (for example, one payment per month).

One important restriction on alimony awards in West Virginia is that a judge can’t order anyone to pay alimony if the spouses are still living together. They have to be living “separate and apart” (meaning, living in separate residences and no longer behaving like a husband and wife) or else the court can’t order alimony.

There are four kinds of alimony in West Virginia:

  • Permanent alimony means that the paying spouse has to pay alimony on an ongoing basis, with no end date. This kind of alimony typically lasts until one of the spouses dies or the receiving spouse remarries.
  • Temporary alimony is also called “alimony pendent lite.” As the name indicates, this kind of alimony doesn’t last forever. It’s only awarded for long enough that the receiving spouse can recover financially from the divorce. It can be awarded during “the pendency of the proceedings” (meaning, while the divorce is ongoing and things haven’t been finalized) or after the divorce is final, or both. It can even be awarded while a divorce case is being appealed.
  • Rehabilitative alimony is a sub-class of temporary alimony that’s intended to help the receiving spouse become gainfully employed. It only has to be paid for a limited time—just long enough, in the court’s opinion, for the receiving spouse to become self-sufficient. This kind of alimony funds rehabilitation, training, or academic studies geared toward future employment.
  • Alimony in gross is a special kind of alimony that the paying spouse gives to the receiving spouse in one lump sum, instead of spreading it out through payments.

How Does Adultery Affect Alimony Awards in West Virginia?

In many states, the judge decides the amount and duration of alimony by applying the facts of the case to a list of factors written into state law. But West Virginia is somewhat different. The West Virginia Legislature has given judges a lot of discretion to make decisions about alimony, and has not restricted them to a specific list of factors that have to be considered.

Instead, courts simply have to make a decision, based on the evidence they think is relevant. A key limitation is that the alimony award can’t be disproportionate to the paying spouse’s ability to pay, and it shouldn’t exceed the receiving spouse’s level of need. The award has to be fair and reasonable.

But what if adultery occurred? West Virginia law is very clear that if the divorce is based on a fault ground like adultery, then the judge can take that into account when making decisions about alimony. The judge can adjust the amount or duration of an alimony award if a spouse committed adultery.

The court can even deny alimony altogether if adultery occurred. The judge has to consider and compare the fault or misconduct of either or both of the spouses and the effect of the fault or misconduct as a contributing factor to the breakdown of the marital relationship.

Therefore, if you are able to obtain a divorce on grounds of adultery, it could have a tremendous impact on the amount and duration of alimony, or even whether you’re able to get alimony at all.

Resources

West Virginia Judiciary's Family Courts page and family court forms

Legal Aid of West Virginia Self-Help Center

The Complete West Virginia Code

W. VA. Code § 48-8-101 (2012)

W. Va. Code § 48-8-102 (2012)

W. Va. Code § 48-8-103 (2012)

W. Va. Code § 48-8-104 (2012)

W. Va. Code § 48-8-105 (2012)

W. Va. Code § 48-5-204 (2012)

W. Va. Code §§ 48-5-201–209 (2012)

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