Sadly, adultery affects thousands of Utah marriages each year and many of these marriages will end in divorce. In some states, adultery can determine whether a spouse is eligible for alimony and can affect property division as well.
In Utah, the law defines adultery as a married person having sexual intercourse voluntarily with someone other than that person's spouse. As of 2019, adultery is no longer a crime in Utah, but it could impact other aspects of your life. (Utah Code Ann. § 76-7-103.)
Utah offers a hybrid divorce approach, which allows couples to file using a "no-fault" or "fault-based" divorce. To save time and money, most divorcing spouses opt for the no-fault divorce, which doesn't require you to prove marital misconduct in the marriage. Instead, you only need to tell the court that you and your spouse have irreconcilable differences or that you've lived separate and apart from your spouse (without cohabitation) for at least three years. (Utah Code Ann. § 30-3-1 (3).)
On the contrary, spouses who wish to have the court list the cause of the divorce as adultery (or any other fault ground) can request a fault divorce. Fault divorces are typically more expensive and require more time in the courtroom before the judge finalizes the divorce. Adultery is a ground for a fault divorce in Utah, and either spouse can allege it in the divorce filing. (Utah Code Ann. § 30-3-1 (3)(b).)
Regardless of the type of divorce you file, Utah courts will consider adultery when determining whether and how much alimony to award. But, it's not a factor when dividing the couple's property.
If you believe your spouse should not receive alimony because of an affair, you will need to gather evidence to prove that the affair occurred. Evidence may include phone records, credit card or bank statements, and any other evidence that shows your spouse was unfaithful. Proving adultery in court can be complicated, so it's best to consult a family law attorney in your area to see if you will be able to prove your spouse's adultery.
Often during a marriage, one spouse becomes financially dependent on the other. Many marriages today have two working spouses, but most still involve some labor division, where one spouse is responsible for earning more income while the other spouse is more responsible for taking care of the household or children.
During a divorce, Utah courts can order the spouse earning more income to make payments to a financially dependent spouse called alimony.
Utah courts consider the following factors when deciding alimony:
In longer marriages, Utah courts may choose to equalize the spouses' standard of living after the divorce. For shorter marriages, courts may try to return spouses to their original living standards before the marriage. Utah courts can always change the alimony award if there is a substantial change in the spouses' financial conditions after the divorce.
For more details on alimony in Utah, read Understanding and Calculating Alimony in Utah.
If you convince the judge that your spouse was unfaithful and that infidelity led to the marriage breakup, the court may deny alimony to your spouse.
Adultery has to be a major cause of the marriage's breakup to prevent an unfaithful spouse from receiving alimony in the divorce. If your spouse was unfaithful, but you forgave your spouse and continued to live together for a significant time after the affair, the court won't consider adultery when deciding alimony. And if you have also had an affair, the court likely won't be able to prevent your spouse from receiving alimony because of your spouse's affair. (Utah Code Ann. § 30-3-5 (8)(c).)
In Utah, adultery doesn't directly impact property division in a divorce. If a spouse spent a significant amount of the couple's money on an affair, however, the court may give the faithful spouse a larger share of the couple's property to compensate for the lost money.
If you believe you should receive a larger share of property because of your spouse's spending on an affair, you should gather receipts and financial statements to show how and when your spouse spent the marital assets.
Utah doesn't consider adultery when deciding child custody or visitation. However, if, during a custody hearing, a parent proves that the other parent's behavior displayed during the affair shows an inability to take care of the children, the court may consider it before finalizing custody. Judges will not consider marital misconduct when deciding child support.
If you have additional questions about divorce and adultery in Utah, contact a Utah family law attorney.
To read the full text of the law on alimony in Utah, read the Utah Code Annotated § 30-3-5.