If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering whether the infidelity could affect your divorce. Michigan courts won't let you use the divorce process as punishment, but your spouse's cheating could impact your case.
Historically, if you wanted a divorce, you had to prove that your spouse was guilty of some kind of wrongdoing. And adultery was usually at the top of the list of misconduct that could be a "ground" (legal reason) for divorce.
Some states still allow you to file for divorce based on your spouse's adultery. But not in Michigan, which is strictly a "no-fault" divorce state. You can request a divorce even if your spouse objects to it, and you only need to show that:
(Mich. Comp. Laws § 552.6(1) (2022).)
The law's language makes the no-fault ground sound more complicated than it is. All it means is that your relationship is broken, and there's no chance that you and your spouse can work it out.
Of course, adultery is one of the most common reasons that marriages end in divorce. And unless you and your spouse can work through the emotional repercussions of an extramarital affair (or you had an open marriage to start with), infidelity can certainly play a central role in leading to the permanent breakdown of your marriage. But it isn't a legal reason for divorce in Michigan. That means there's no need to prove or disprove that the affair took place in order for you to obtain your divorce.
State divorce laws typically set out a list of circumstances that judges must consider when they're making decisions about alimony. Several of those factors are similar across states, such as the length of the marriage and the spouses' age and health. Other factors vary from state to state. That's especially true when it comes to the issue of adultery. Many states no longer allow judges to take a spouse's misconduct into account. But some states still do—and Michigan is one of them.
Although Michigan statutes don't list specific factors for consideration in alimony decisions, the state's courts have taken care of that. When deciding whether to award alimony in Michigan—as well as how much and for how long—judges should take into account several factors, including:
(Loutts v. Loutts, 826 N.W.2d 152 (Mich. Ct. App. 2012).)
So a spouse's adultery can have a direct impact on whether a judge believes alimony is warranted in a case. At first blush that might seem like contradictory thinking—the state prohibits using adultery as a reason to get a divorce, but allows it to come into play in alimony decisions. Why not just allow it (or disallow it) for both?
There's actually a method to the madness. State legislatures know that divorces based on fault grounds are usually more contentious, because an accused spouse is more likely to fight the accusation of wrongdoing. This takes an emotional toll on the entire family, including children. But there's less of a risk of that result if fault is permitted for the more limited purpose of awarding alimony, because the whole divorce case won't be premised on wrongdoing.
There's also a practical reason for bringing fault into the alimony equation, especially as it relates to adultery. Let's say that a spouse has committed adultery, bringing the marriage to an end. That's bad enough in and of itself. But what if that spouse added injury to insult by dipping into marital assets to finance the affair—for instance, with lavish gifts, trips, or even providing a lover with financial support. Now the adultery has caused financial harm to the innocent spouse. Including that as a factor in the alimony decision-making allows the judge to compensate that spouse for the loss.
As with alimony, adultery can affect judges' decisions on other issues in a Michigan divorce. You might see this crop up with child custody or the division of property.
Child support in Michigan is calculated under the state's child support guidelines. 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. As a general rule, adultery won't impact child support.
Decisions about child custody in Michigan, as in all states, must be based on what would be in the children's best interests. The law provides a list of items for judges to consider when determining what best serves the child's interests in a particular case. "The moral fitness of the parties involved" is one of those factors. (Mich. Comp. Laws § 722.23(f) (2022).)
As a practical matter, the moral-fitness factor won't usually encompass a parent's adultery, and it's unlikely to affect a judge's decision about parenting time (visitation) or where the child will live most of the time. This is especially true in light of the importance placed on parents' ongoing relationship with their children after the divorce. The mere fact that a married person has had an affair doesn't mean that person can't be a good parent.
That said, a judge could conceivably consider the circumstances around a parent's adultery if it endangers the child's well-being—for instance, if the parent's extramarital relationship involved abusive behavior, or if a parent became completely uninvolved in the child's life because of that relationship.
Michigan is an "equitable distribution" state, which means the court will divide the couple's property based on what it believes is fair under the particular circumstances of each case. It's important to note that "equitable" doesn't necessarily mean 50-50.
The Michigan Supreme Court has set out the factors that divorce judges must consider in the property division. One of those factors is "the past relations and conduct of the parties." (Sparks v. Sparks, 485 N.W.2d 893 (Mich. Sup. Ct.1992).) So a spouse's adultery may play a role when a judge is deciding how to distribute a couple's property between them. As with alimony, an innocent spouse's financial loss resulting from the adultery can be a key consideration.
Most states have done away with laws that make adultery a crime. Not Michigan. Under a very old law, adultery is a felony in the state. The law defines adultery as the sexual intercourse of two persons, either of whom is married to a third person. That means that in Michigan, even single people can theoretically be charged with adultery if they've had an affair with a married person, and if the innocent spouse files a criminal complaint within a year of the offense. (Mich. Comp. Laws §§ 750.29, 750.30, 750.31(2022).)
As a practical matter, prosecutors these days never (or almost never) charge people with the crime of adultery. Still, the law remains on the books.
You may be devastated to learn that your spouse has had an extramarital affair. But if you've decided to end your marriage as a result, it's not a good idea to try to use the divorce process to punish your spouse.
Even in states where there aren't fault grounds (like Michigan), aggrieved spouses may channel their anger by contesting issues like custody, alimony, or property distribution just for the sake of fighting. All this accomplishes is to make the entire process more stressful, not just for your spouse, but for you and your kids as well. And it will undoubtedly increase the cost of divorce, particularly when it comes to attorneys' fees.
If at all possible, try to separate the emotional issues resulting from your sense of betrayal from the practical and legal issues in your divorce. While you're taking steps to rebuild your life after divorce, do what you can to ensure that the divorce itself will be as smooth as possible.
If you can cooperate with your spouse enough to work out a divorce settlement agreement, you'll be able to get an uncontested divorce in Michigan—which is always quicker, easier, and cheaper than a traditional contested divorce. And if you need help resolving your disagreements, you can try divorce mediation. With an agreement, you can probably get a DIY divorce, either on your own or by using an online divorce service.
But if you're the one who went outside of the marriage for physical intimacy, you might find yourself dealing with a spouse who simply won't let it go and insists on a drawn-out legal battle over every issue in your divorce. When that's the case, you should speak with an experienced family law attorney to learn what you can do to protect your interests.