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 and to be healthy and happy again. The first step is self-protection, which should include learning about your rights and obligations in divorce proceedings.
This article will explore the possible affect adultery may have on the divorce process and, specifically, on alimony. If you have any questions after reading 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 you can't save it. (Mich. Comp. Laws § 552.6 (1).)
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, such as adultery. In fact, the person asking for the 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 should reduce the level of conflict in the divorce.
But does adultery have any impact on divorce outcomes? Michigan defines adultery as "the sexual intercourse of two persons, either of whom is married to a third person." (Mich. Comp. Laws § 750.29.) Adultery is a felony-level crime in Michigan, but the state will only prosecute it if the innocent spouse files a criminal complaint within a year of the offense. (Mich. Comp. Laws § 750.30-31.)
In reality, prosecutions for adultery are rare.
Alimony, also known as "spousal support" or "maintenance" in Michigan, 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, to ensure 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."
Family court judges in Michigan can award alimony in various forms, depending on the facts of the case. (Mich. Comp. Laws § 552.13 (1).) For example, if paying spouses can't provide sufficient support on a monthly basis, a judge can order that the supported spouse receive a larger share of the couple's assets from the property division.
Judges can also order temporary or permanent alimony. Courts usually reserve permanent alimony in cases involving long-term marriages. In whatever amount the court deems proper and necessary, temporary alimony is available while the divorce is pending (meaning not finalized) if the receiving spouse needs the money to maintain the marital property and make ends meet. (Mich. Comp. Laws § 552.23.)
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 evaluated on the receiving spouse's level of need and the paying spouse's ability to pay (not to punish either spouse.) Once the court awards alimony, 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. (Mich. Comp. Laws § 552.13 (2).)
Michigan law requires judges 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, suppose a spouse cheated on the other spouse, causing the marriage to end, and on top of that, the cheating spouse depleted the marital estate by spending the couple's money on lavish gifts for an extramarital lover. In that case, a Michigan judge can certainly consider that evidence when deciding the amount and duration of alimony, or even whether alimony is appropriate at all.
Generally, no. Under Michigan law, judges must calculate child support using the state's support calculator. The most significant factors impacting a child support award are each parent's income, the number of overnight visits with each parent, and medical or daycare expenses. Adultery will not impact child support.
When deciding custody, judges must consider the children's best interest before creating a family's parenting plan. To ensure a proper custody award, judges must evaluate the following:
Judges must evaluate all of the state's best interest factors before awarding custody. While it may appear that infidelity will raise questions during the moral fitness question, it's unlikely that a judge will deny custody to a parent just for having an affair during the marriage.
However, an affair may indirectly affect a parent's custody award if the parent places the child in an environment where the child's wellbeing is at risk. For example, suppose a parent frequently allows strangers and/or partners with criminal histories into the home while the child is present. Under these circumstances, a court may conclude the child isn't safe in that parent's home and can limit or deny custody until the parent resolves the situation.
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