Adultery in Delaware: Does Cheating Affect Alimony?

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

An Overview of Alimony in Delaware

When a couple divorces, they are forced to face not only the painful loss of a meaningful and intimate bond, but also the prospect of dividing up all their assets and liabilities. Until they divorce, married couples are frequently unaware of how closely entangled their finances really are. The process of divorce awakens them to the shocking reality that most of their worldly possessions are commingled.

The reality is that most couples will not enjoy the same level of financial comfort after a divorce. Alimony (which is sometimes referred to as “spousal maintenance” or “spousal support” in other states) is an attempt to level the playing field. It consists of the money that one spouse (the paying spouse or the "obligor") pays to the other (the supported spouse or the "obligee") to ensure that neither spouse becomes destitute because of a divorce.

The family court can order alimony to be paid before or after the divorce is final. “Interim alimony” (meaning, alimony that’s only paid temporarily, during the divorce proceedings) can be required before a court issues a final divorce judgment. Later, when a family court issues a permanent, final order, it will decide whether the alimony should continue.

Regardless of whether alimony is temporary or ongoing, a judge can only issue an alimony award if all of the following are true:

  • the supported spouse is dependent on the paying spouse for support, and the paying spouse is not contractually or otherwise obligated (for example, through a prenuptial agreement) to provide support after the entry of the final divorce order
  • the supported spouse lacks sufficient property, including any award of marital property made by the court, to provide for his or her reasonable needs, and
  • the supported spouse is unable to be self-supporting through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.

Get more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Delaware.

What Role Does Adultery Play in a Delaware Divorce?

Some states will consider either spouse's marital misconduct when deciding whether to grant a divorce. These states allow “fault-based” divorce. Marital misconduct can include “grounds” (legal justifications for divorce) like fraud or abandonment, but one of the most common fault grounds is adultery. Adultery is generally defined as occurring when a legally married person enters into a sexual relationship with someone other than the person’s spouse.

However, many other states have shifted to a “no-fault” model. “No-fault” means that the court isn’t interested in the reasons the marriage fell apart. All that has to be shown to the court’s satisfaction is that the marriage has broken down so badly that it can’t be repaired.

Delaware is a no-fault state, and a divorce will be granted if it is “irretrievably broken” and “reconciliation is improbable.” Adultery may the reason you choose to end your marriage, but the court will not consider evidence that your spouse was cheating for purposes of deciding whether to grant the divorce.

Does Adultery Affect Alimony Awards in Delaware?

No. Judges are explicitly forbidden from considering adultery, or any other kind of marital misconduct, when deciding whether to award alimony or calculating the amount and duration of it. Judges in Delaware have to make these decisions “without regard to marital misconduct,” so there is no wiggle room to consider wrongdoing. Alimony orders must be “just,” which means they have to be fair and reasonable. To make these decisions, courts have to consider these factors:

  • the financial resources of the spouse seeking alimony, including the marital or non-marital (also known as premarital) property awarded to that spouse, and the spouse’s ability to meet all or part of his or her reasonable needs independently
  • the time necessary and expense required to acquire sufficient education or training to enable the spouse seeking alimony to find appropriate employment
  • the standard of living established during the marriage
  • the duration of the marriage
  • the age, physical and emotional condition of both spouses
  • any financial or other contribution made by either spouse to the education, training, vocational skills, career or earning capacity of the other spouse
  • the ability of the paying spouse to provide for his or her own needs, while also paying alimony
  • tax consequences
  • whether either spouse has foregone or postponed economic, education, or other employment opportunities during the course of the marriage, and
  • any other factor which the court expressly finds is just and appropriate to consider.

Although the courts can't consider marital misconduct when fashioning alimony decisions, lawmakers have made an effort to be fundamentally fair to both spouses by striking a balance between the obligor's ability to pay and the supported spouse's need for assistance:

  • If a marriage lasts 20 years or longer, the supported spouse is eligible for an award of permanent alimony that has no time limit. If a marriage lasted less than 20 years, the supported spouse can only receive alimony for 50% of the total “term” (duration) of the marriage.
  • Supported spouses who have been awarded alimony are under a continuing obligation to make good faith efforts to seek vocational training and employment. A court can dismiss this requirement in unusual cases, such as where the supported spouse has a severe and incapacitating physical or mental illness or disability, is too old, or if seeking out training and employment would adversely affect any minor children who live with the supported spouse.
  • If a spouse waives (gives up) the right to alimony, in writing, either before, during, or after the marriage, then the waiver is permanent and that spouse can’t collect alimony after a divorce.
  • Unless the spouses reach a different agreement, the obligor’s duty to pay alimony ends when either spouse dies, when the supported spouse remarries or “cohabits” with another person. “Cohabitation” means living with another adult as part of a romantic relationship where the couple holds themselves out to the world as being involved in a committed relationship. Cohabitation has to result in a financial benefit to the supported spouse. (For example, there’s an economic benefit if the supported spouse only has to pay half the rent, food bill, and utilities after cohabitation.) Any supported spouse who remarries or cohabits has an obligation to inform the obligor right away.

Additional Resources

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

For self-help purposes, you can look at the Delaware Judiciary's State Courts Citizen Help page and official family court forms. You can also review the legal assistance page to learn about free or low-cost legal representation.

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