Adultery in West Virginia: Does Cheating Affect Alimony?

If you’re getting divorced in West Virginia and you or your spouse has cheated, you’ll need to know how the adultery will affect the judge’s decisions about your case, including alimony, child custody, and child support.

By , Attorney · Cooley Law School

If you or your spouse has committed adultery during your marriage and you're anticipating a divorce, one of the best things you can do to make this difficult time a little bit easier is to familiarize yourself with your legal rights and responsibilities.

This article will explain how adultery might affect your divorce and any alimony award in West Virginia.

Adultery and Divorce in West Virginia

When couples decide to file for divorce, the initial paperwork (the divorce petition) must include a statement of why the marriage is ending.

In a state that recognizes "no-fault" divorces, you don't need to provide any specific reason for why you want to get divorced—it's enough to tell the judge that your marriage is so badly broken that you can't fix it.

In a state that recognizes fault-based divorces, you can tell the judge why you want to divorce your spouse. For example, if your spouse is addicted to drugs, you can note in your divorce petition that this is the reason (ground) why the marriage is ending.

West Virginia is a hybrid state: You can choose whether you want a no-fault or fault-based divorce. To get a no-fault divorce in West Virginia, you'll state in your petition that you and your spouse have "irreconcilable differences" (meaning you can't get along anymore). You do not have to prove or corroborate that you have irreconcilable differences. (W.Va. Code § 48-5-201 (2021).)

To get a fault-based divorce in West Virginia, you can request a divorce for any of the following reasons:

  • voluntary separation (this can be a fault or no-fault ground; the court can consider marital misconduct if appropriate for the case) (W.Va. Code § 48-5-202 (2021))
  • cruel or inhuman treatment, which can (but doesn't have to) include physical abuse (W.Va. Code § 48-5-203 (2021))
  • adultery (W.Va. Code § 48-5-204 (2021))
  • a spouse was convicted of a felony after the marriage (W.Va. Code § 48-5-205 (2021))
  • permanent and incurable insanity (W.Va. Code § 48-5-206 (2021))
  • habitual drunkenness or drug addiction (W.Va. Code § 48-5-207 (2021))
  • desertion (W.Va. Code § 48-5-208 (2021)), and
  • abuse or neglect of a child (W.Va. Code § 48-5-209 (2021)).

West Virginia defines adultery as "the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband." If you or your spouse have committed adultery, you can tell the judge about it and obtain a divorce that specifies that adultery occurred. (Adultery is not a criminal offense in West Virginia, meaning the state can't prosecute you in criminal court for an affair.)

Bringing fault-based grounds into your divorce might have major ramifications on other areas of your divorce, like child custody. If you're thinking about filing a fault-based divorce, consider consulting with an attorney to discuss the pros and cons of no-fault versus fault-based divorce.

Alimony in West Virginia

West Virginia's legal code uses the term "spousal support" to describe alimony. Alimony is the payment of money from one spouse to another so that both can live separately, at a relatively equal income level, without either spouse becoming impoverished. The court sometimes refers to the paying spouse as the "obligor" while referring to the receiving spouse as the "obligee." Judges can order a paying spouse to pay alimony all at once (known as "lump sum alimony") or in regular, periodic installments (for example, one payment per month).

One important restriction on alimony awards in West Virginia is that judges can't award alimony when the spouses live together. Neither spouse is eligible to receive or pay alimony until they are living "separate and apart" (in separate residences and no longer behaving like a husband and wife).

There are four kinds of alimony in West Virginia:

  • Permanent alimony. The paying spouse has to pay alimony regularly, with no end date. This kind of alimony typically lasts until one of the spouses dies or the receiving spouse remarries.
  • Temporary alimony. Also called "alimony pendent lite," this kind of alimony doesn't last forever. It's awarded for an amount of time long enough for the receiving spouse to recover financially from the divorce. The court can award it during "the pendency of the proceedings" (meaning, while the divorce is ongoing and the judge hasn't finalized the divorce) or after the divorce is final, or both. Judges can even award it while a spouse appeals the divorce case.
  • Rehabilitative alimony. This is a sub-class of temporary alimony intended to help the receiving spouse become gainfully employed. Judges order these payments for only a limited time—just long enough, in the court's opinion, for the receiving spouse to become self-sufficient. This kind of alimony funds rehabilitation, training, or academic studies geared toward future employment.
  • Alimony in gross. A special kind of alimony that the paying spouse gives to the receiving spouse in one lump sum instead of spreading it out through payments.

(W.Va. Code § 48-8-101 (2021).)

How Adultery Affects Alimony in West Virginia

In many states, the judge decides the amount and duration of alimony by applying the facts of the case to a list of factors written into state law. But West Virginia is somewhat different—the West Virginia Legislature has given judges a lot of discretion to decide alimony.

Instead, West Virginia judges can consider whatever evidence they believe is relevant to deciding alimony in the specific case they are hearing. The main restrictions are that judges can't award alimony in a way that is disproportionate to the paying spouse's ability to pay, and any award shouldn't exceed the receiving spouse's level of need. An alimony award also has to be fair and reasonable.

West Virginia law is very clear that in fault-based divorces, the judge shall (must) take adultery into account when making alimony decisions. The judge can adjust the amount or duration of an alimony award when a spouse has committed adultery.

West Virginia judges can even deny alimony altogether when a spouse has committed adultery: Judges must consider and compare the fault or misconduct of either or both of the spouses and the effect of the fault or misconduct as a contributing factor to the breakdown of the marital relationship. (W.Va. Code § 48-8-104 (2021).)

How Adultery Affects Child Custody and Support in West Virginia

In most cases, adultery will not impact a judge's child custody or child support decision. When it comes to allocating child custody and parenting time in divorce cases, the judge's primary concern is always what is in the child's best interest. (W.Va. Code § 48-9-102 (2021).)

Although a custody evaluation may consider the child's age and preference, the parent's wishes, and the child's relationship with each parent, it does not consider either parent's marital misconduct. (W.Va. Code § 48-9-206 (2021).) However, when a parent's bad behavior during the marriage carries over after the divorce and impacts the child's well-being, the court may consider it when awarding custody. For example, when a parent is in a relationship with an abusive partner and the child witnesses the abuse while spending time with a parent, the court may limit parenting time until the parent resolves the situation.

West Virginia law requires judges to apply a specific set of guidelines to determine the appropriate amount of child support. The child support guidelines require the judge to calculate each parent's income and apply it to the state's worksheets. (W.Va. Code § 48-13-301 (2021).) In general, the court will only consider each parent's income, the number of children, the custody arrangement, and whether the parent or child has extraordinary expenses each month before determining support. (W.Va. Code § 48-13-401 (2021).) Judges do not consider marital misconduct when deciding child support.