Adultery in Colorado: Does Cheating Affect Alimony?
Learn whether an extramarital affair can impact spousal support in Colorado.
Alimony (which is technically referred to as “spousal maintenance” in Colorado) is the money that one spouse (the paying spouse) has to pay to the other (the supported or receiving spouse) both during and after a divorce. The purpose of alimony is to make sure both spouses are able to live at or near the same standard of living they enjoyed while they were married.
Alimony is treated very seriously in Colorado, and lawmakers recognize that when two people marry, their financial fortunes are commingled. The Colorado General Assembly has declared that “the economic lives of spouses are frequently closely intertwined in marriage” and that “it is often impossible to later segregate the respective decisions and contributions of the spouses.”
For this reason, Colorado has a “presumption” (a legal assumption) that when the combined gross annual income of a divorcing couple is less than $75,000, temporary alimony must be ordered during the divorce proceedings. If gross annual income exceeds $75,000, a judge has the option to order temporary alimony.
The goal of these laws is to ensure that the poorer spouse isn’t totally impoverished while the divorce works its way through the legal system. Later, when a family court issues a permanent, final order, it will decide whether the alimony should continue.
Get more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Colorado.
What Role Does Adultery Play in an Colorado Divorce?
Legal authorities agree that adultery occurs when a person who is legally married engages in a voluntary sexual encounter or relationship with someone other than the person's legal spouse. The adulterous spouse is the one who's committed marital misconduct, while the spouse who's been victimized is known as the "innocent spouse."
In many states, adultery has an impact on whether and how a couple divorces. States that recognize fault-based "grounds" (justifications) for divorce frequently accept adultery as a good enough reason to allow a couple to divorce. These states may go even farther by punishing an adulterous spouse with, for example, a reduction of the amount or duration of alimony.
But Colorado is a no-fault state, which means that the court doesn’t care about why a marriage failed. The court will not consider any evidence of marital misconduct. If one spouse can convince a judge that the marriage is “irretrievably broken” (meaning, the relationship is so badly damaged that it can’t be saved), the judge will grant the divorce. In fact, Colorado case law explicitly says that adultery is not a ground for divorce.
How Does Adultery Affect Alimony Awards in Colorado?
Family court judges must consider the following factors when they make a final alimony award:
- the financial resources of the obligee, including the actual or potential income from separate or marital property or any other source, and the ability of the obligee to meet his or her needs independently
- the financial resources of the obligor, including the actual or potential income from separate or marital property or any other source and the ability of the obligor to meet his or her reasonable needs while paying maintenance
- the lifestyle during the marriage
- the distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance
- both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child (meaning, a minor) of the marriage or the circumstances of the parties
- whether one party has historically earned higher or lower income than the income reflected at the time of permanent (meaning, final) orders and the duration and consistency of income from overtime or secondary employment
- the duration of the marriage
- the amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse
- the age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses
- significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including but not limited to completing an education or job training, payment by one spouse of the other spouse’s separate debts, or enhancement of the other spouse’s personal or real property, and
- any other factor that the court deems relevant.
You probably noticed that none of these factors have anything to do with marital misconduct like adultery. That’s because judges in Colorado cannot consider adultery, or any other misconduct, when making a decision about whether to award either permanent or temporary alimony. Adultery can’t be considered when a judge decides the amount and duration of alimony either. Courts must decide alimony issues “equitably,” which means their decisions must be fair and reasonable.
There’s one exception to this rule, but it’s very narrow. If a spouse commits marital misconduct and the misconduct has economic repercussions, then and only then can the misconduct be considered by the court when it awards alimony or divides property. For example, if an adulterous spouse empties the joint marital bank accounts by purchasing luxurious trips and lavish gifts for an extramarital lover, that fact could be held against the adulterous spouse when it comes to the alimony award.
If you have questions about alimony and adultery in Colorado, please contact an experienced family law attorney for help.
For self-help purposes, you can look at the Colorado Judicial Branch's Self Help Center and Colorado’s official court forms. You can also browse the Colorado Legal Services site for legal resources and assistance.