Adultery in Colorado: Does Cheating Affect Alimony?

If you’re getting divorced in Colorado 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 and child custody.

A spouse's infidelity can add tension to any divorce, and can create a concern you wouldn't otherwise have to deal with: How will the adultery affect the outcome of your divorce? Every state has different laws about how adultery affects divorce; this article breaks down the effects of adultery on divorces in Colorado.

Colorado Alimony Laws

Alimony, also called "spousal maintenance" in Colorado, is money that one spouse pays to the other as part of a divorce. The purpose of alimony is to allow both spouses enjoy the same standard of living that they enjoyed while married. Colorado judges can order a spouse to pay temporary alimony while a divorce is pending and after the divorce is final.

How Do Colorado Judges Decide Alimony?

Either spouse can request alimony as part of a divorce proceeding. To decide whether an alimony award is appropriate, Colorado judges consider the following:

  • each spouse's gross income
  • property awarded to each spouse as part of the divorce
  • each spouse's financial resources (including actual and potential income)
  • the requesting spouse's financial need, and
  • the tax implications of alimony.

(Colo. Rev. Stat. § 14-10-114(3)(a)(I) (2021).)

Once a judge has decided that an alimony award is necessary and appropriate, the judge will assess several factors to determine how much alimony should be awarded and for how long. For example, a judge might review each spouse's education, the length of the marriage, each spouse's age and health, and any other factor the court deems relevant. This means a judge could—but isn't required to—consider one spouse's adultery when deciding alimony. For more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Colorado.

Is Colorado a No-Fault Divorce State?

A legally married person commits adultery by engaging in a voluntary sexual encounter or relationship with someone other than the person's legal spouse. The adulterous spouse is the one who's committed marital misconduct, while the spouse who's been victimized is known as the "innocent spouse."

In many states, the fact that one or both of the spouses have committed adultery matters when someone files for divorce. For example, in states that recognize fault-based divorce, adultery is a legitimate "ground" (reason) for ending the marriage. Some fault-based divorce states might even penalize an adulterous spouse who seeks alimony by reducing the amount or duration of any award.

However, Colorado is a no-fault state, which means that divorcing couples don't have to show a reason for their divorce. In Colorado, a couple seeking a divorce only has to claim that the marriage is "irretrievably broken" (meaning the relationship is so badly damaged that it can't be saved). In fact, Colorado case law explicitly says that adultery is not a legally recognized reason for divorce.

Does Adultery Affect Alimony in Colorado?

When deciding how much alimony is appropriate, Colorado judges consider a laundry list of several factors, including:

  • the paying spouse's financial resources
  • the receiving spouse's financial resources
  • the couple's lifestyle during the marriage
  • each spouse's education, earning capacity, and employability
  • the length of the marriage
  • each spouse's age and health, including special healthcare needs
  • each spouse's non-monetary contributions to the marriage (such as childcare), and
  • any other factor that the court believes is relevant.

(Colo. Rev. Stat. § 14-10-114(3)(c) (2021).)

Notably, none of these factors have anything to do with marital misconduct like adultery. That's because judges in Colorado cannot consider adultery, or any other misconduct, when making alimony decisions. Rather, Colorado judges must use the guidelines in the state's statute to craft fair, equitable, and consistent alimony awards. (Colo. Rev. Stat. § 14-10-114(1)(c) (2021).)

There's only one (very narrow) scenario where adultery might affect a Colorado alimony award: When a spouse commits marital misconduct that affects the couple's financial situation, the judge might consider the misconduct when awarding alimony or divides property. For example, if an adulterous spouse empties the joint marital bank accounts by purchasing luxurious trips and lavish gifts for a lover, the court might account for the adulterous spouse's actions when it comes to the alimony award.

Does Adultery Affect Child Custody in Colorado?

In most Colorado divorce cases, one spouse's extramarital affair won't have an effect on the court's child custody decision. A child's best interests—not a parent's fidelity—are at the heart of any custody decision. Generally, Colorado judges weigh factors like each parent's stability and relationship with the child when deciding custody. It's only in the most extreme circumstances that a parent's affair could impact custody. For example, when a parent has been having an affair with a convicted child abuser, a judge might conclude that the adulterous parent's relationship and choices pose the risk of harm to the child, and therefore take this into account when deciding custody.

Additional Resources

For self-help purposes, you can look at the Colorado Judicial Branch's Self Help Center and Colorado's official court forms. Colorado Legal Services' website also provides information about Colorado's family-related laws and possible legal assistance.