Adultery in Idaho: Does Cheating Affect Alimony?

If you’re getting divorced in Idaho 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.

One spouse's infidelity can spell the end of a marriage. It also raises questions about how the adultery will affect any alimony award. This article provides an overview of adultery's impact on alimony awards during an Idaho divorce.

Overview of Alimony in Idaho

Alimony (called "maintenance" in Idaho) is money paid by one spouse (the "obligor") to the other (the "obligee") in a divorce. The purpose of alimony is twofold: to help both spouses to live as closely as possible to the standard of living they enjoyed while they were married, and to make sure that one spouse isn't left destitute while the other spouse walks away with the bulk of the money.

Idaho judges have a lot of leeway in deciding whether to award alimony. When a judge decides that alimony is appropriate in your case, the judge will also look at each spouse's earning capacity, health, and living circumstances to determine the amount and duration of the award. However, Idaho judges can order an obligor to pay alimony only when both of the following threshold statements are true:

  • the obligee lacks sufficient property to provide for the obligee's reasonable needs, and
  • the obligee is unable to be self-supporting through employment.

(Idaho Code § 32-705 (2021).)

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

Adultery and Divorce in Idaho

Virtually every state, including Idaho, recognizes "no-fault" divorce grounds. In a no-fault divorce, a spouse doesn't have to prove that the other is at fault for the marriage's breakdown; instead the couple only needs to claim that the marriage is broken and can't be repaired.

In addition to no-fault divorces, Idaho recognizes fault-based grounds for divorce. In a fault divorce a spouse can introduce evidence of marital misconduct, such as cruelty, desertion and adultery. Adultery is defined as "the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife." (Idaho Code § 32-604 (2021).)

When you prove to the judge that your spouse committed adultery, you are entitled to a divorce on that ground. Obtaining a divorce on grounds of adultery might also give you a leg up in other aspects of the divorce, like alimony.

Is Adultery Illegal in Idaho?

Under Idaho's adultery laws, voluntary sexual intercourse with a married person other than a spouse is a crime. Although many states have done away with their adultery statutes, adulterous spouses in Idaho could face fines and jail time. (Idaho Stat. § 18-6601 (2021).)

How Does Adultery Affect Alimony Awards in Idaho?

An alimony award has to be fair and reasonable. Idaho judges analyze several factors when determining alimony, including:

  • each spouse's financial resources (including property awarded in the divorce)
  • each spouse's ability to be independent and self-supporting
  • the time necessary to acquire sufficient education and training to enable the spouse seeking maintenance to find employment
  • the length of the marriage
  • the age and the physical and emotional condition of the spouse seeking maintenance
  • the ability of the obligor to meet the obligor's needs while also paying alimony
  • the tax consequences to each spouse, and
  • either spouse's fault during the marriage.

(Idaho Code § 32-705 (2021).)

Because Idaho law allows judges to consider a spouse's fault during the marriage, judges can consider evidence of adultery when calculating alimony. The Idaho Supreme Court explained that "marital fault, which includes adultery, is one of the many factors that [Idaho law] expressly allows a trial court to consider when making a spousal maintenance award." (Pelayo v. Pelayo, 303 P.3d 214, 218-19 (2013).)

This means that a judge can consider evidence of adultery and its impact on the marital estate. For example, the judge might decide to increase the amount and duration of alimony owed by an adulterous spouse to an innocent spouse. If the obligee is the adulterous spouse, the judge could decide to decrease the amounts and duration of alimony that the spouse receives.

The only caveat is that the alimony decision has to be fair and reasonable, and it can't be focused only on adultery. If adultery occurred, it's just one factor for the judge to consider. The court also has to consider the other factors and produce a just and balanced decision based on the totality of the evidence.

Does Adultery Affect Child Custody in Idaho?

In most cases, judges do not consider a spouse's adulterous relationship when deciding custody. Rather, judges look at the child's best interests to determine parenting time and visitation. So long as a parent's infidelity doesn't impact a child's safety or well-being, it probably won't have any impact on a custody decision.

Additional Resources

The State of Idaho Judicial Branch's Court Assistance Office has a lot of information about child custody, as well as official court forms. You can also browse the Idaho Legal Aid Services, Inc. site for resources and assistance offered by a nonprofit legal service provider dedicated to helping low-income Idaho residents with legal problems.