Adultery in Alabama: Does Cheating Affect Alimony?

Learn whether adultery can affect alimony in an Alabama divorce.

By | Updated by Joseph Pandolfi, Retired Judge

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" or "paying spouse") to pay to the other (the "obligee" or "supported spouse"), so that both spouses can try to enjoy the same standard of living they had when they were married.

Sometimes, divorcing spouses will mutually agree to waive alimony, or they'll come to an agreement on an amount and the duration of payments. Settling the issues in a divorce will almost invariably save time and money (think attorneys' fees).

If the spouses can't reach a meeting of the minds, then an Alabama family court judge will decide whether either spouse should receive such support. Alabama law gives judges leeway in making this decision. Determination of the duration and amount of an alimony award depends on the circumstances of each case.

In Alabama, the law regarding alimony changed as of January 1, 2018. For divorces filed on or after that date, there are basically three types of alimony available to spouses.

"Interim" alimony is a temporary award that the judge may give to the supported spouse while the case is still pending, meaning before there's a final judgment of divorce. This kind of support is intended to financially assist the needier spouse as the divorce process plays out. (Ala. Code § 30-2-56.)

In terms of alimony options available when the divorce becomes final, the court can award either "rehabilitative" alimony or "periodic" alimony. In order to award either of these, the court has to find that all the following factors exist:

  • a spouse doesn't have sufficient means to enable that spouse to acquire the ability to preserve, to the extent possible, the economic status quo that existed during the marriage
  • the other spouse has the ability to supply those means without undue economic hardship, and
  • the circumstances of the case make paying alimony fair. (Ala. Code § 30-2-57 (a).)

Rehabilitative alimony is meant to put a spouse in a position to gain the ability to attain the financial status quo that existed during the marriage. For example, you might see this where a spouse needs to get certain training to be able to enter or re-enter the workforce. This is the preferred type of alimony in Alabama, and a court should award it unless the court determines that the facts of the case are such that rehabilitative alimony isn't feasible. Under the law, the duration of rehabilitative alimony can't exceed five years (unless there are extraordinary circumstances). (Ala. Code § 30-2-57 (b) (1).)

In cases where the court believes rehabilitative alimony isn't feasible (or has been attempted with no success or only partial success), the court can award periodic alimony for a length of time, and in an amount that will allow the supported spouse to attain the financial status quo that existed during the marriage (as far as possible). (Ala. Code § 30-2-57 (b) (2).)

Ordinarily, the duration of periodic alimony payments can't be longer than the length of the marriage. So if the marriage lasted nine years, periodic alimony payment can't exceed nine years. There are two exceptions. One is if the court finds that limiting the time period wouldn't be fair. The other is where the marriage lasted 20 years or more, in which case there's no set time limit for periodic alimony payments. (Ala. Code § 30-2-57 (g).)

If you're interested in learning more about this subject, you may find it helpful to review the process Alabama courts use to calculate alimony.

What Role Does Adultery Play in an Alabama Divorce?

Alabama law permits both "no-fault" and "fault-based" grounds (reasons) for divorce. With no-fault divorce, neither spouse blames the other for the failure of the marriage. In a fault-based divorce, a spouse claims that the other spouse did something wrong. In Alabama, one of the fault-based grounds is adultery. (Ala. Code § 30-2-1) And under Alabama divorce laws, adultery can impact various aspects of a divorce.

As to how to prove adultery in Alabama, oftentimes you won't have direct evidence, such as actually witnessing the adultery take place. But you can prove it through circumstantial evidence "which creates more than a mere suspicion" that adultery has occurred. (Billington v. Billington, 531 So.2d 924, 924 (Ala. Civ. App. 1988).) Information contained in emails might be an example. Proving adultery can be tricky, so you should consider consulting with a local divorce attorney.

Does Adultery Affect Alimony Awards in Alabama?

If you're alleging adultery in your divorce complaint, it may come into play regarding alimony. When they make decisions about alimony, family law judges have to consider a number of factors, including:

  • the length of the marriage
  • the spouses standard of living during the marriage
  • the relative fault of the spouses for the breakdown of the marriage
  • the age and health of the spouses
  • the spouses' future employment prospects
  • the contribution of one spouse to the education or earning ability of the other
  • the extent to which a spouse reduced income or career opportunities for the benefit of the other spouse or the family
  • excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of property
  • all actual damages and judgments from conduct resulting in criminal conviction of either spouse in which the other spouse or a child of the marriage was the victim, and
  • any other factor the court deems fair under the circumstances of the case. (Ala. Code § 30-2-57 (f).)

As you can see from the above list, spousal fault for the divorce is one of the factors for a judge to consider. In Alabama, cheating on your spouse can have financial consequences in the form of either having to pay more alimony, or receiving less alimony, depending on which spouse is guilty of the misconduct.

In the case of 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."

Does Adultery Affect Custody or Child Support?

Not usually. That said, be mindful that when it comes to custody matters, judges are obligated to prioritize the best interests of the child. So if a parent's philandering jeopardizes a child's well-being, then that could certainly enter into a judge's decision regarding the parent's right to custody or visitation (parenting time). For example, let's say a parent frequently leaves a young child unattended while that parent is out engaging in an extra-martial affair. When it comes time for a judge to make a ruling on the issue of custody, the neglectful parent would be hard pressed to make a convincing argument as to being worthy or capable of being entrusted with the child's care.

As for child support, the amount of time a child spends with the parent who is obligated to pay support typically factors into a calculation of the support amount. As a rule, the more parenting time parents have with a child, the less child support they'll have to pay, because they're spending money on the child during parenting time. If the court denies or significantly limits parenting time because of a parent's adulterous behavior, the offending parent will pay an amount based both on income and custodial time with the child.