Adultery in Alabama: Does Cheating Affect Alimony?

Find out if an extramarital affair can affect alimony and other issues in an Alabama divorce.

By , Retired Judge

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 Alabama, you have the option of filing for divorce based on your spouse's adultery. If you can prove that claim, it could affect the judge's decisions about alimony. But there are several other considerations that go into those decisions.

What Role Does Adultery Play in an Alabama Divorce?

In Alabama, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Alabama 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. (Ala. Code § 30-2-1(a)(2) (2022).)

Proving or Defending Adultery Claims in an Alabama Divorce

If you file for divorce in Alabama based on your spouse's adultery, you'll need to prove that claim. Oftentimes you won't have direct evidence, such as actually witnessing the sexual encounters. But you may be able to prove it with circumstantial evidence that "creates more than a mere suspicion" that adultery has occurred. (Billington v. Billington, 531 So.2d 924, 924 (Ala. Civ. App. 1988).) Items such as hotel receipts, phone records, emails, texts, and photos may be sufficient. But note that either spouse's confession to being unfaithful isn't enough, in and of itself, to prove adultery.

Showing that your spouse both was disposed toward adultery and had the opportunity to follow through on that disposition will go a long way toward proving your case. One example of evidence showing a disposition toward adultery would be testimony from a witness or photographs showing your spouse kissing someone else in public. And you could show the opportunity for adultery with evidence showing your spouse entering the alleged paramour's home in the evening and not leaving until the next morning.

If you're the one hoping to put up a defense against an allegation of adultery, you should know that the judge won't allow the adultery as a ground for divorce when:

  • it appears that a spouse committed adultery with the other spouse's consent for the purpose of obtaining a divorce
  • both spouses have committed adultery (known as "recrimination")
  • the innocent spouse condoned the adultery by continuing in the marital relationship after learning of the other spouse's infidelity, or
  • the husband knew of or somehow connived to have the wife commit adultery.

(Ala. Code § 30-2-3 (2022).)

As to that last circumstance, the law still uses the words "husband" and "wife" rather than the gender-neutral "spouse." So if you're in a same-sex marriage and are wondering how that provision might apply to your situation, you should speak with a local divorce attorney.

Can Adultery Affect Alimony Awards in Alabama?

An award of alimony in an Alabama divorce isn't automatic. A judge has to conclude that it's warranted under the circumstances of each case. The judge must decide whether the spouse seeking alimony needs the support to preserve the economic status quo that existed during the marriage—and whether the other spouse has the ability to pay that alimony without undue economic hardship. The judge must also find that awarding alimony would be fair under the circumstances.

Alabama law spells out a long list of factors that judges must look at when they're deciding whether it would be fair to award alimony. The list includes the spouses' relative fault for the breakdown of the marriage. (Ala. Code § 30-2-57(f) (2022).) Alabama courts have confirmed that judges may consider fault, including alimony, when they're making alimony decisions. (Wright v. Wright, 19 So.3d 901 (Ala. Civ. App. 2009).)

So cheating on your spouse in Alabama could have financial as well as emotional consequences when you get divorced.

Can Adultery Affect Property Division in an Alabama Divorce?

Alabama is an "equitable distribution" state. This means judges will divide the couple's property in a way they believe is fair under the particular circumstances. It's important to point out that "equitable" doesn't necessarily mean a 50-50 split.

When a judge grants a fault-based divorce based on one spouse's misconduct—including adultery—Alabama law specifically allows the judge to consider that misconduct when deciding how to divide the couple's marital property. (Ala. Code § 30-2-52 (2022).)

A fairly common example of how adultery can affect property division arises when a cheating spouse dips into marital assets to finance the affair, such as with lavish gifts, travel, or even providing financial support to a lover. This reduces the property pool available for distribution, adding injury to insult. The judge may decide to compensate the "innocent spouse" by awarding that spouse a greater share of the remaining assets.

Can Adultery Affect Custody or Child Support in Alabama?

In Alabama, as in all states, decisions about child custody and parenting time (visitation) must be based on what would be in the children's best interests. In fact, as long as parents have shown they can act in their children's best interests, it's state policy to make sure that children have "frequent and continuing contact" with both parents after divorce, and to encourage the parents to share the rights and responsibilities of raising their kids. (Ala. Code §§ 3-3-150, 3-3-152 (2022).)

At the same time, however, Alabama law does specifically allow judges to consider the parents' "moral character and prudence" when deciding whether to award custody to one of them. (Ala. Code § 30-3-1 (2022).) So how does adultery enter into the mix, if at all? Some people will argue that having an affair is a moral failing or at least a lack of "prudence." In Alabama, a judge might agree.

However, Alabama courts have held that a parent's adultery is only one factor among many that will help judges decide on custody arrangements that would be in the children's best interests. And a cheating parent shouldn't necessarily be deprived of custody unless that parent's behavior was harmful to the child. (Weissenberger v. Weissenberger, 367 So.2d 485 (Ala. Ct. App. 1979); Monk v. Monk, 386 So.2d 753 (Ala. Ct. App. 1980).)

Child support in Alabama 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.

Child support is meant for the children's needs, not as a reward or punishment for parental behavior. So either parent's adultery wouldn't play a direct role in a judge's decisions about that support. But if a judge has limited the cheating spouse's parenting time because of concerns about about the children's well-being, that might affect the amount of support that parent will have to pay. That's because parents who have less time with the kids typically pay a higher amount of support.

Is Adultery a Crime in Alabama?

Yes. Under Ala. Code § 13A-13-2, adultery is a Class B misdemeanor. These days, however, it's unlikely that this law is often (if ever) enforced.

Approaching Divorce After Adultery

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 Alabama, 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.