Adultery in Delaware: Does Cheating Affect Alimony?

If your marriage is ending because you or your spouse had an extramarital affair, you might be wondering how the adultery could affect an award of alimony or other issues in your divorce. And when you're the one who's been hurt by your spouse's infidelity, you might be tempted to use the divorce process to get revenge. That's seldom a good idea. Read on to learn how Delaware divorce laws address the adultery.

How Adultery Affects a Delaware Divorce

You need a legally accepted reason (or "ground") to file for divorce. In Delaware, you may file for divorce based on no-fault or fault grounds. When you file for a fault divorce, you'll claim that your marriage is irretrievably broken because your spouse engaged in misconduct, which can include adultery. (13 Del. Code §§ 1503(7),1505(b)(2) (2024).)

You'll have to prove your claim in court, which can be difficult. In addition to countering that the affair never happened, your spouse may raise certain defenses—such as by asserting that you condoned the infidelity. As a result, a fault divorce can be more expensive (think lawyer's fees) and more stressful than a no-fault divorce.

Can Adultery Affect Alimony Awards in Delaware?

Delaware law has specific rules governing alimony awards. When judges are making alimony decisions, they must consider a long list of relevant circumstances. But the law specifically says that judges may not consider marital misconduct, including adultery, in their alimony decisions.

It is worth pointing out that a spouse's new relationship after the divorce may affect whether existing alimony payments will continue. Under Delaware law, alimony must end when the spouse who's receiving the payments gets remarried or regularly lives with an unmarried partner, as long as the two hold themselves out as a couple (the definition of "cohabitation").

(13 Del. Code § 1512 (2024).)

Can Adultery Affect Child Custody and Child Support in Delaware?

A child's best interests, not a parent's fidelity, are at the heart of any custody case. Here again, the law requires judges to consider certain factors when they're making decisions about child custody in Delaware, including the child's relationship with both parent. Unless a parent's extramarital affair has affected the parent-child relationship and the child's well-being, it won't play a role in the custody arrangements.

There's even less chance that adultery would affect child support. The guidelines for calculating child support in Delaware use a formula based on the parent's incomes and the child's needs. Nothing in the formula accounts for a parent's misconduct. However, the guidelines do include an adjustment when the parent who's paying support has the child for a significant overnights in the year. So in the rare situation when a parent's extramarital relationship affected the custody arrangements, it might indirectly affect the amount of child support.

Can Adultery Affect Property Division in a Delaware Divorce?

As with alimony, Delaware law prohibits judges from considering marital misconduct when they're dividing a couple's property in divorce. Among all the other relevant factors, however, the judge will consider whether either spouse has wasted ("dissipated," in legalese) the couple's assets. (13 Del. Code § 1513(a)(6) (2024).)

So if an adulterous spouse spent a lot of the couple's money on an affair (such as for expensive gifts or travel), the judge might award the other spouse a greater share of the remaining assets in the interest of fairness. In that way, the dissipation of assets—rather than the adultery itself—could affect the property distribution.

Getting Help With a Divorce Involving Adultery

If you're considering filing for a fault divorce based on your spouse's adultery—or if your spouse has already taken that step—you should strongly consider speaking with a family law attorney who can evaluate your case and advise you on the best way forward.