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 (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:
(13 Del. Code § 1512 (2012).)
For more detailed information how the amount of alimony is determined, see Understanding and Calculating Alimony in Delaware.
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.
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:
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).)
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.
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.