Adultery destroys many marriages in the United States each year. More than two out of every three marriages will not survive after a spouse has been caught being unfaithful. If your marriage is ending due to your spouse’s affair, you may want to know whether the affair affects your legal rights in the divorce. In some states, adultery affects the spouses’ eligibility for alimony and may impact property division.
This article will explain what effect adultery has on your legal rights in Pennsylvania. If you have additional questions after reading this article, you should talk to a Pennsylvania family law attorney.
Unlike many states that only have “no-fault” divorces, Pennsylvania allows spouses to seek "fault" divorces. In a fault divorce, courts will consider either spouse’s misconduct as it relates to the divorce. Marital misconduct includes adultery, abuse and drug addiction.
Adultery is defined in Pennsylvania as voluntary sexual intercourse with a person besides your spouse. As explained below, adultery may affect alimony and property division in Pennsylvania divorces. If you are pursuing a divorce based on your spouse's cheating, you should speak with an experienced family law attorney for information on proving the affair at trial.
Alimony is financial support paid by one spouse (usually the higher earner) to the other during or after a divorce. It is intended to help a low-earning spouse meet his or her reasonable needs.
During a marriage, particularly a long marriage, one spouse may become financially dependent on the other. Alimony is not automatically awarded to a financially dependent spouse under Pennsylvania law; it is only awarded when necessary. In determining whether alimony is necessary, Pennsylvania courts consider many factors, including:
Alimony in Pennsylvania may be "periodic," that is, payments made on a monthly or annual basis, or alimony may be lump-sum, which is usually a one-time payment. Periodic alimony payments typically end when either spouse dies or the supported spouse gets remarried. Courts may also award alimony for a specific period of time, such as a number of years, months, or until the supported spouse gains employment.
In Pennsylvania, the court always has the right to modify or end the alimony award when the spouses’ financial circumstances change. For more details on alimony in Pennsylvania, read Understanding and Calculating Alimony in Pennsylvania.
In Pennsylvania, a spouse that commits adultery that leads to divorce is not eligible to receive alimony.
If you believe your spouse should not be eligible to receive alimony due to adultery, you’ll have to meet a number of requirements. First, you will have to prove the adultery with convincing evidence. Circumstantial evidence, such as hotel receipts, phone records, emails, texts, photos and videos may be sufficient to prove adultery; you do not have to prove actual sexual contact.
Second, you will have to prove that the adultery caused the divorce. If you forgave your spouse for cheating and then later filed for divorce, the court may decide the adultery was not the cause of the divorce.
Third, you must have "clean hands" - this means you cannot have committed adultery yourself if you're going to argue that your cheating spouse should be barred from receiving alimony.
Finally, you can’t have consented to, or received a benefit from, the adultery (such as knowingly spending money earned from prostitution).
There may be other defenses to adultery that an unfaithful spouse may use to remain eligible for alimony. For example, a cheating spouse may claim to have been insane during the time of the adultery.
Pennsylvania law takes adultery very seriously. Not only can adultery affect your ability to receive alimony, it used to be criminal offense in Pennsylvania, as well as that basis for a civil lawsuit. Although you can no longer be sued or prosecuted for adultery in Pennsylvania, courts will consider adultery when dividing a divorcing couple’s property. The spouse who cheated may receive a smaller portion of the parties’ assets as a result of his or her infidelity.
Adultery usually won’t affect child custody and visitation in a divorce, unless the unfaithful spouse’s relationship had or has a negative impact on the children.
If you have additional questions about divorce and adultery in Pennsylvania, you should contact a local experienced family law attorney.
To read the full text of the law on alimony in Pennsylvania, see the Pennsylvania Consolidated Statutes Title 23, Chapter 37.