If you're facing the end of your marriage because you or your spouse had an extramarital affair, you may be wondering whether the infidelity could affect what happens in your divorce case. When you live in Pennsylvania, you have the option of filing for divorce based on your spouse's adultery. Then, if you can prove that claim, the judge might take the adultery into account when deciding how much alimony to award. But there are several other considerations that go into those decisions.
In Pennsylvania, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Pennsylvania include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (23 Pa. Cons. Stat. § 3301(a)(2) (2022).)
If you file for divorce in Pennsylvania based on your spouse's adultery, you'll need to prove that claim by "clear and convincing" evidence. (Crawford v. Crawford, 633 A.2d 155 (Pa. Super. Ct. 1993).) Circumstantial evidence (such as hotel receipts, phone records, emails, texts, and photos) may be enough to prove adultery. In other words, you don't need to provide evidence of the actual sexual encounters, like video recordings.
If your spouse has accused you of adultery in the divorce papers, there are a number of arguments you can make to try to convince the court that adultery isn't a legitimate ground for divorce in your case—even if you acknowledge that you had sex outside of your marriage. To do this, you'd have to prove one of the following:
( 23 Pa. Cons. Stat. § 3307(b) (2022).)
An award of alimony in a Pennsylvania divorce isn't automatic. The law states that a judge should award alimony only when it's necessary. (23 Pa. Cons. Stat. § 3701(a) (2022).)
There's a long list of factors judges must look at when they're whether alimony is necessary in any particular case—and if it is, how much the payments should be and how long they should last. One of those factors is either spouse's marital misconduct during the marriage. (23 Pa. Cons. Stat. § 3701(b) (2022).)
Marital misconduct includes adultery. So a spouse's extramarital affair could impact the judge's decision on alimony. You're likely to see this when a spouse's affair has caused financial harm to the innocent spouse. Let's say the cheating spouse dipped into marital assets to finance the affair—lavish gifts, trips, or even providing a lover with financial support, for example. The judge could take that into consideration as a way to compensate the innocent spouse.
Under Pennsylvania law, judges may not consider not consider adultery (as a form of marital misconduct) that happens after the spouses have permanently separated. (23 Pa. Cons. Stat. § 3701(b) (2022).)
Although post-separation adultery, by itself, won't affect alimony decisions, Pennsylvania law prohibits an alimony award to a spouse who cohabits with "a person of the opposite sex." Despite the statute's wording (which refers to entering into cohabitation "subsequent to the divorce"), Pennsylvania courts have found that this prohibition also applies when a spouse who's seeking alimony lives with a new partner before the divorce is final, as long as their relationship is marked by "financial, social, and sexual interdependence." (23 Pa. Cons. Stat. § 3706 (2022); Moran v. Moran, 839 A.2d 1091 (2003).)
As the courts have pointed out, this law isn't geared toward punishing adultery. Instead, it's based on an assumption that living with a new partner lessens the need for alimony.
It's not clear how this provision on cohabitation would apply to same-sex partners, since the law still uses gendered language. But no matter your gender or the gender of your new partner, if you're seeking alimony in your divorce and are considering moving in with that new partner (or have already done so), you should speak with a divorce lawyer to learn how the move could affect your ability to get support from your ex.
Pennsylvania is an equitable distribution state. This means judges will divide the couple's property in a way they believe is fair under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean an equal (50-50) split.
Pennsylvania law states that judges may not take marital misconduct into account when dividing the couple's marital property. So adultery won't play a role in a judge's decision about what would be fair when distributing the property. (23 Pa. Cons. Stat. § 3502(a) (2022).)
Decisions about child custody and parenting time (visitation) in Pennsylvania, as in all states, must be based on what would be in the children's best interests. Pennsylvania law sets out a list of factors for judges to consider when making custody decisions. The list includes circumstances like domestic violence and a parent's drug or alcohol abuse are listed, but the statute doesn't mention adultery or other marital misconduct. (23 Pa. Cons. Stat. § 5328(a) (2022).)
Although the law allows judges to consider any relevant circumstance along with the listed factors, a parent's adultery is unlikely to affect a judge's decision about parenting time or where the child will live most of the time. This is especially true considering the importance for children of maintaining a relationship with both of their parents after a 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.
Child support in Pennsylvania is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, and certain additional expenses. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a role in determining which of them will pay support or the amount of the payments.
No, adultery isn't a crime under Pennsylvania law.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Pennsylvania, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims and convince a judge that your spouse's adultery should affect decisions about alimony. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.