If your marriage is ending because you or your spouse committed adultery, you've been hit with a double whammy. You're grieving the loss of your relationship, but you may also have to cope with other powerful emotions, like shame, anger, regret and suspicion. When times are that tough, it can be hard to stay grounded. But one of the best things you can do for yourself and your family is to begin to investigate your legal rights and responsibilities and take charge of the divorce process.
This article will explain the impact of adultery on the divorce process in Washington and whether courts will consider adultery when awarding alimony. If you have any questions after you read this article, you should speak with an experienced family law attorney for advice.
The legal reason for a divorce is known as the “grounds” for divorce. In some states, divorcing spouses are allowed to argue in court about the reasons for their divorce. These are called “fault-based” states, because you are allowed to tell the judge why you want to divorce your spouse and explain why the marital misconduct of a "guilty spouse" was harmful to the "innocent spouse." For example, if your spouse suffered from chemical dependency, was abusive to you or had an affair, you could ask the judge to grant a divorce for those reasons. The grounds will then be written in the court's order and they may or may not have an impact on other aspects of the divorce, like child custody and alimony.
Washington, however, is not a fault-based state. Instead, Washington is following the more modern legal trend toward "no-fault" divorce. No-fault divorce means that you do not have to provide any specific reason why you want to divorce your spouse. All you have to do is explain that your marriage is "irretrievably broken" (meaning, so badly damaged it can't be repaired or saved) and the judge will issue a divorce order.
There is no need for anyone to sling mud around a courtroom or try to prove ugly and painful facts. This shortens the divorce process and tends to help people heal more quickly. But it also means that Washington judges will not listen to any evidence about marital misconduct, like adultery.
Washington’s legal code uses the term “maintenance” 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 comparable income levels. The goal is to achieve approximate equality, so that neither spouse falls into poverty after the divorce is final. The paying spouse is sometimes known as the “obligor,” while the receiving spouse is known as the “obligee.”
Washington's law gives judges a lot of latitude in deciding the amount and duration of alimony, and permits them to issue temporary orders (meaning, alimony awards that are in place while the divorce is still making its way through the system). Judges are not boxed into formulas or specific types of alimony, but have the freedom to do what is just and sensible. They can craft orders that vary with the circumstances of the marriage.
For example, if the receiving spouse passed up educational or vocational opportunities to take care of the children and family home or to support the career of the other spouse, then a judge might issue a "rehabilitative" alimony award that would provide the receiving spouse with enough financial support to get the education and retraining necessary to become self-sufficient. That kind of award would be temporary. But a judge also has the discretion to award longer-term alimony where it's warranted.
Once an alimony order is issued, the paying spouse has to keep paying until the order is satisfied (completed). If either spouse dies, or if the receiving spouse remarries, then the paying spouse can stop paying alimony.
If divorcing spouses can't agree about alimony, a judge will decide for them. If the court considers all the evidence and concludes that alimony is appropriate, the judge must decide how much has to be paid and for how long. The Revised Code of Washington contains a list of factors that courts must consider in making these decisions:
The judge's order has to be "just." That means it has to be fair and reasonable under the circumstances. The award has to take into account the receiving spouse's level of need and the paying spouse's ability to pay.
But what if adultery occurred? To date, there is no case law that specifically addresses adultery. But the Washington code is very clear that alimony awards have to be based on the above factors and that fault can't be considered. Judges have to write alimony orders "without regard to misconduct." This means that the family court can't consider any kind of fault or marital misconduct, including adultery, when it makes decisions about alimony.
The complete Revised Code of Washington