If you’re getting divorced in Delaware 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, child custody, and child support.
Divorce means both a split from your spouse and splitting finances. While alimony isn't awarded in every case, a judge will award alimony in a Delaware divorce to equalize the couple's standard of living. One spouse's infidelity probably won't affect alimony in Delaware. This article provides an overview of alimony awards and Delaware divorce laws regarding infidelity.
Alimony in Delaware
Alimony (also called "spousal maintenance" or "spousal support") is a court's attempt to level the financial playing field in a divorce. When a judge awards alimony in your Delaware divorce, one spouse (the "paying spouse") will pay the other spouse (the "supported spouse") a set amount of money each month.
Alimony can be temporary or for a set number of years. A judge may order "interim alimony" (meaning, alimony that's only paid temporarily, during the divorce proceedings) while a divorce is pending. 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 to provide for his or her reasonable needs, and
- the supported spouse is unable to be self-supporting through appropriate employment or due to circumstances (such as a medical condition or responsibility for a minor child).
(13 Del. Code § 1512 (2012).)
For more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Delaware.
How Adultery Affects a Delaware Divorce
Delaware is a no-fault state, and a judge will grant your divorce on no-fault grounds if your marriage is "irretrievably broken." This is a fancy way of saying that you and your spouse can't get along. Although you might be seeking a divorce based on your spouse's adultery, the court won't consider evidence that your spouse was cheating for purposes of deciding whether to grant the divorce. Either spouse can file for a no-fault divorce in Delaware.
Although some states still recognize fault-based divorce grounds such as fraud, abandonment, or adultery, Delaware is a no-fault divorce state, and does not recognize one spouse's infidelity as grounds for divorce.
How Adultery Affects Alimony Awards in Delaware
One spouse's extramarital affair won't affect any award of alimony in Delaware. In fact, judges are explicitly forbidden from considering adultery when deciding alimony awards. Instead of looking at one spouse's affair, a judge will examine the following factors:
- each spouse's financial resources
- the financial needs of the spouse seeking alimony
- the time and expense necessary to enable the spouse seeking alimony to seek education and/or find appropriate employment
- the standard of living established during the marriage
- the duration of the marriage
- each spouse's age
- each spouse's physical and mental health
- any financial or other contribution made by either spouse to the education, training, vocational skills, career, or earning capacity of the other spouse
- the paying spouse's ability to self-provide, while also paying alimony
- tax consequences of any alimony award
- whether either spouse has foregone or postponed economic, education, or other employment opportunities during the course of the marriage; and
- any other appropriate factor.
Although the courts can't consider marital misconduct in alimony awards, later actions can impact alimony. Specifically, alimony ends upon either spouse's death or the supported spouse's remarriage or cohabitation. Delaware's cohabitation law defines "cohabitation" as regularly residing with a member of the same or opposite sex if the parties hold themselves out as a couple. (13 Del. Code § 1512 (2021).)
How Adultery Affects Child Custody and Child Support in Delaware
A child's best interests, not a parent's fidelity, are at the heart of any custody case. When determining custody, a judge will examine the child's relationship with each parent and siblings, each parents' ability to provide stability, and the parents' age and health, among other factors. Unless a parent's affair affects the child's well-being, a judge won't consider one spouse's adultery in a custody or child support case.
Additional Resources
The Delaware Judiciary's State Courts Citizen Help page and official family court forms contain more information and can address many of your questions about how adultery can affect alimony in Delaware.
