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 Utah, you have the option of filing for divorce based on your spouse's adultery. If you can prove that claim, it might impact alimony. But be aware that there are other factors judges will take into consideration.
In Utah, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Utah 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. (Utah Code § 30-3-1(3)(b) (2022).)
If you file for divorce in Utah based on your spouse's adultery, you'll need to prove that claim. It might be enough if you have convincing circumstantial evidence, such as hotel receipts, phone records, emails, texts, and photos. You don't need to provide direct evidence of the actual sexual encounters.
It will also help your case if you can show that your spouse had an inclination and opportunity to commit adultery. An example of inclination would be if your spouse was seen kissing someone in public. And you could show opportunity if, for instance, you have evidence that your spouse entered an alleged lover's home in the evening and didn't leave until the next morning.
If you're defending yourself against an allegation of adultery, you could attempt to present a "condonation" defense, meaning that your spouse tacitly accepted the adultery by staying in the relationship with you after learning of the affair. (Griffiths v. Griffiths, 278 P.2d 893 (Utah Sup. Ct. 1955).) But a judge may still grant a divorce if both spouses committed adultery. (Mullins v. Mullins, 485 P.2d 663 (Utah Sup. Ct. 1971).)
Be aware that fighting charges of adultery in a divorce proceeding can be legally challenging, so you should consider consulting with an experienced, local divorce attorney to see what defenses might be available to you.
An award of alimony in a Utah divorce isn't automatic. A judge has to determine that it's warranted under the circumstances of each case.
Utah law spells out a number of factors that judges must consider when they're deciding whether to award alimony and, if so, how much and for how long. Judges may also consider the spouse's wrongful conduct, including adultery. (Utah Code § 30-3-5(10) (2022).)
But even when a judge chooses to take a spouse's adultery into account, that would only be one factor among many. Judges tend to focus more on the supported spouse's needs and the paying spouse's ability to pay alimony.
Utah is an "equitable distribution" state. (Utah Code § 30-3-5(2) (2022).) This means judges will divide the couple's property in a manner they believe is fair under the particular facts of each case. Although "equitable" doesn't necessarily mean a 50-50 split, Utah courts have held that there should be exceptional circumstances warranting an unequal division. (Bradford v. Bradford, 993 P.2d 887 (Utah Ct. App. 1999).)
Unlike with alimony, Utah law doesn't provide a list of factors that judges must consider when dividing a couple's marital property. Judges have a fair amount of leeway when deciding what would be fair under the circumstances. But the Utah Supreme Court has emphasized that the purpose of property division in divorce is not to punish the spouses for any misconduct. (Jesperson v. Jesperson, 610 P.2d 326 (Utah Sup. Ct. 1980).
However, that doesn't mean adultery can never play a role in the property division. When one spouse has depleted the couple's assets, the judge may offset that depletion by awarding more than half of the property to the other spouse. (Shepherd v. Shepherd, 876 P.2d 429 (Utah Ct. App. 1994).)
So if a spouse has squandered marital assets to finance an extramarital affair—such as by buying a lover lavish gifts or paying for expensive travel and hotel stays—a judge may very well decide that it would be fair to award the "innocent spouse" a greater share of the remaining property in compensation.
Decisions about child custody and parent-time (visitation) in Utah, as in all states, must be based on what would be in the children's best interests.
Utah judges have a great deal of leeway when they're deciding what would be in a child's best interest. The law lists many factors that the judge may consider, including a parent's "past conduct and demonstrated moral character." (Utah Code § 30-3-10(2) (2022).)
Certainly, some people would argue that a parent's adultery is a reflection of poor moral character. But here again, Utah courts have held that judges may not use a custody award to punish parents for immoral or "unsavory" behavior unless it shows poor parenting that affects the children's best interests. (Carsten v. Carsten, 164 P.3d 429 (Utah Ct. App. 2007).)
In most cases, adultery isn't likely to affect a parent's ability to be a good parent. But there might be some extreme situations where the circumstances surrounding the adultery could endanger the child's well-being—for instance, if the extramarital relationship involved exposing the child to abusive behavior, or a parent became completely uninvolved in the child's life because of the adulterous relationship. In circumstances like that, the judge might decide that it would be in the child's best interests to limit that parent's time with the kid.
Child support in Utah 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, the amount of time the children spend with each parent, and items like the cost of health insurance and work-related childcare. Typically, the more time a child stays with a parent, the less child support the parent would be responsible for, because the parent is already spending money on the child when they're together.
Because the support payments are meant for the children's needs—not as a reward or punishment for parental behavior—either parent's adultery wouldn't play a direct role in determining which of them will pay support or the amount of the payments. However, in the rare situations when the judge has limited a cheating parent's time with the child (out of concern for the child's well-being), that parent could end up owing more child support than would've been the case if the custody arrangement provided for more evenly divided parenting time.
No. As of 2019, adultery is no longer against a crime in Utah.
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 try 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 Utah, 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, custody, or property division. (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.