Adultery in Alabama: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in Alabama.

An Overview of Alimony in Alabama

Alimony, which is sometimes known in other states as “spousal support” or “spousal maintenance,” is the money that a court orders one spouse (the “obligor”) to pay to the other (the “obligee”), so that both parties can try to enjoy the same standard of living they had when they were married.

Quite often, divorcing spouses will mutually agree to waive (give up) alimony. Sometimes, instead of arguing about alimony, they’ll come to an agreement on an amount and the duration of alimony, which takes the decision out of the judge’s hands. However, if spouses can’t agree to a waiver of alimony, then an Alabama circuit judge of the family court will have to decide if either spouse is entitled to receive such support. Alabama law gives judges a lot of discretion (leeway) in making this decision, and no one is entitled to a jury trial on this issue.

In Alabama, there are six kinds of alimony you need to know about:

Permanent alimony is regular payments made by one spouse to the other for an indeterminate amount of time. This means that the obligor has to keep paying alimony indefinitely and possibly until one of the two spouses dies, remarries, or cohabits (moves in and lives with) someone of the opposite gender. Judges generally order permanent alimony when the parties have been married for a long time and the obligee has become financially dependent on the obligor.

Lump sum alimony occurs when the entire alimony award is paid at one time.

Alimony pendent lite is a temporary award that the judge may give to the obligee while the case is still pending and there’s no final order. This kind of support is only intended to help the needier spouse financially survive the divorce proceedings.

Periodic alimony is what most of us are familiar with, and it involves one spouse paying alimony to the other on a regular basis. For example, periodic alimony might have to be paid bi-weekly or monthly from the obligor's earnings. These awards can be modified or even terminated depending on whether circumstances change substantially. The money the obligor pays is deductible for income tax purposes, and the money the obligee receives is taxable.

Rehabilitative alimony is a kind of specific periodic alimony. The obligor pays alimony to the obligee only until the obligee is able to complete an education or find a job. The purpose is to help the obligee recover financially after the divorce and become self-supporting.

Alimony in gross is a one-time property settlement that can’t be modified later. For tax purposes, the obligor can’t deduct it and the obligee doesn’t have to pay taxes.

Learn how alimony is determined, see Understanding and Calculating Alimony in Alabama.

What Role Does Adultery Play in an Alabama Divorce?

Alabama law permits two kinds of divorces: no-fault and fault-based. This contrasts with the laws of many other states, where all divorces are no-fault. When it comes to no-fault divorce, no particular reason is given for why the spouses are divorcing—it’s enough that one spouse says the marriage is broken and can’t be fixed. The court doesn’t have to look into any of the facts about how the spouses treated each other.

Fault-based divorces, on the other hand, are based on proof that one party committed marital misconduct (meaning, some wrongful, intentional action that caused irreparable harm to the marriage). Various legal authorities define adultery as occurring when a married person engages in the act of voluntary sexual intercourse with someone other than the legal spouse. Some legal experts believe that adultery is the most common ground (basis) for fault-based divorce in Alabama.

Alabama law says that once adultery has occurred, there’s reason enough for a married couple to go their separate ways. This means that adultery can be an important variable when you’re trying to obtain a fault-based divorce. But when it comes to alimony, the role of adultery can be relevant, but it's more limited.

Does Adultery Affect Alimony Awards in Alabama?

In Alabama, family law judges have to make an “equitable" division of property in divorce cases. This means that the couple’s property has to be divided in a fair and reasonable way, but each spouse won’t necessarily walk away with an equal amount of money. This also applies to alimony. There’s no requirement for an exact, fifty-fifty split. For that reason, a judge will consider whether alimony should be awarded based on some or all of the following factors:

  • the earning ability of the spouses
  • the future prospects of the spouses
  • the spouses’ respective ages and health
  • the length of the marriage
  • the spouses’ station in life (meaning wealth, social status, and careers), standard of living, and potential to maintain that standard once the divorce ends
  • the property the spouses possess, including the source, type, and value of each property
  • the conduct of the spouses and whether it led to the divorce, and
  • any other facts the judge thinks are relevant.

The “conduct of the spouses” factor includes adultery provided that adultery is the cause of the divorce.

Although they are supposed to consider all of the relevant factors, Alabama judges do have the power to consider adultery as one of the factors when they award alimony. When a fault-based divorce is granted, Alabama law allows the judge to “make an allowance to either spouse out of the estate of either spouse, or not make an allowance as the circumstances of the case may justify, and if an allowance is made, the misconduct of the spouse may be considered in determining the amount.” This means that the judge has the power to give part of the adulterer’s piece of the financial pie to the “innocent spouse” (the person who was wronged or hurt by the adultery). The judge could also reduce an alimony award, if the obligee has committed adultery.

The only limitation is that judges can’t give the adulterous spouse’s non-marital property (this is property acquired before the marriage) to the other spouse.

Two key Alabama appellate court cases have considered the impact of adultery on alimony awards. In Ryland v. Ryland, 12 So. 3d 1223 (Ala. Civ. App. 2009), the trial court found that the husband committed many acts of marital misconduct, including adultery. The trial court granted a fault-based divorce and awarded the innocent spouse an increasing amount of periodic alimony. One of the reasons for this decision was because the husband was adulterous. The Alabama appellate courts reviewed the case and agreed with the trial court.

In another case, Wright v. Wright, 19 So. 3d 901 (Ala. Civ. App. 2009), the trial court decided that there was proof that the husband had committed adultery. The trial court granted a fault-based divorce on grounds of adultery, reduced the husband’s share of the property division and ordered him to pay more money for periodic alimony. The husband appealed, and the appellate court agreed with the trial court’s order, saying, “The record reveals that the husband committed adultery, and he does not challenge the trial court’s divorcing the parties on that ground. Accordingly, it was proper for the trial court to consider the husband’s fault in fashioning the property division and periodic alimony awards.”

On the other hand, the Alabama courts have also found, in Brewer v. Brewer, 695 So. 2d 1 (Ala. Civ. App. 1996), that when a spouse committed adultery before the marriage, that fact was immaterial in awarding alimony or dividing the marital property. So Alabama has made it clear that any adultery committed before marriage isn't a factor in calculating alimony.

Additional Resources

If you have questions about alimony and adultery in Alabama, please contact an experienced family law attorney for help.

For self-help purposes, you can also look at the Alabama Family Court website and the official Alabama eForms collection.

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