Adultery destroys many marriages in the United States each year. More than two out of every three marriages will not survive after a spouse catches the other being unfaithful. If your marriage is ending due to your spouse's adultery, 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 as well.
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. (23 Pa. Cons. Stat. Ann. § 3301 (a).)
A no-fault divorce means that neither spouse blames the other for the divorce. As a result, the filing spouse only needs to tell the court that either both spouses agree to the divorce or that the marriage is irretrievably broken and there's no chance for reconciliation. (23 Pa. Cons. Stat. Ann. § 3301 (c)(d).)
Pennsylvania defines adultery 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're 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. The purpose of alimony is to help a low-earning spouse meet reasonable needs while the divorce is pending and, if necessary, for a period after the court finalizes the divorce.
During a marriage, particularly a long marriage, one spouse may become financially dependent on the other. Judges do not automatically award alimony to a financially dependent spouse under Pennsylvania law. Instead, courts reserve alimony for cases where it is necessary. In determining whether alimony is needed, Pennsylvania courts consider many factors, including:
Alimony in Pennsylvania may be "periodic," that is, payments made monthly or annually, 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. (23 Pa. Cons. Stat. Ann. § 3707.) 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. (23 Pa. Cons. Stat. Ann. § 3701.) 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. (23. Pa. Cons. Stat. Ann. § 3706.)
If you believe your spouse should not be eligible to receive alimony due to adultery, you'll have to meet many 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 the court should bar your cheating spouse 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). (23 Pa. Cons. Stat. Ann. § 3307.)
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.
Adultery can affect your ability to receive alimony. It also used to be a criminal offense in Pennsylvania and a basis for a civil lawsuit. However, today, no one can sue or prosecute you for adultery in Pennsylvania. Additionally, Pennsylvania law specifically prohibits the court from considering marital misconduct when dividing a couple's marital property. (23 Pa. Cons. Stat. Ann. § 3502 (a).)
Adultery will not impact child support and will not usually affect child custody and visitation in a divorce unless the unfaithful spouse's relationship has a negative impact on the children. Before finalizing a custody decision, the court will evaluate a series of factors to determine a custody plan in the child's best interest. (23 Pa. Cons. Stat. Ann. § 5328.)
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.