If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering whether the infidelity could affect what happens in your divorce case. When you live in Louisiana, you have the option of filing for divorce based on your spouse's adultery. And proof of adultery can impact several aspects of the divorce—particularly alimony.
In Louisiana, as in all states, you need a legally accepted reason (or "ground") to get a divorce. The grounds for divorce in Louisiana include both fault and no-fault reasons. Among the fault-based grounds, you may get a divorce if the judge finds that your spouse has committed adultery. (La. Civ. Code art. 103(2) (2022).)
If you file for divorce in Louisiana based on your spouse's adultery, you'll need to prove that claim. The Louisiana courts don't make it easy. The person seeking a divorce must have actual proof of the infidelity to get a divorce based on adultery. Note that in Louisiana, adultery isn't limited to sexual intercourse. Louisiana courts have held that it also includes "sexual connection," such as oral sex. (Menge v. Menge, 491 So. 2d 700 (La. Ct. App. 1986).)
Under Louisiana divorce law, you can prove adultery by circumstantial evidence, as long as it "leads fairly and necessarily to the conclusion that adultery has been committed." (Lyons v. Lyons, 768 So. 2d 853 (La. Ct. App. 2000).) In other words, the proof you present to the court must be so strong that the only conclusion is that your spouse committed adultery. Some examples of proof you might present include videos or photographs, witness testimony, emails, text messages about an affair, and social media posts.
Be aware that if you reconcile with your spouse after learning about an extramarital affair, you may not later get a divorce based on your spouse's adultery. (La. Civ. Code art. 104 (2022).)
An award of alimony (known as "spousal support") in a Louisiana divorce isn't automatic. A judge has to decide that it's warranted under the circumstances of each case. The law provides a long list of factors judges must consider before deciding whether to award alimony.
But before the judge gets to those factors, spouses seeking alimony must show that they need financial support—and that they were free from fault before the divorce process started. (La. Civ. Code art. 111 (2022).) So if you're seeking alimony, but your spouse is able to prove that you committed adultery before one of you filed for divorce, you're out of luck. Louisiana law bars you from receiving any alimony.
On the flip side, if you've filed for divorce based on your spouse's adultery—and you prove that claim—the law automatically presumes that you're entitled to alimony. Your spouse would need to convince the judge that you shouldn't receive it. (La. Civ. Code art. 112(C) (2022).)
Most states use the "equitable distribution" method to divide property, in which judges distribute spouses' assets based on what they believe is fair under the circumstances of each particular case.
But Louisiana is one of only a few "community property" states. Generally, all of the property and debts that spouses acquire during their marriage are considered community property (with some exceptions, like gifts and inheritances). And unless they agree on how they'll divide that property when they divorce, Louisiana law requires the judge to divide the couple's community property and debts so that each spouse receives property of equal value. (La. Rev. Stat. § 9:2801(A)(4)(b) (2022).)
However, you might be able to seek compensation if your cheating spouse has squandered community property on an extramarital affair (such as for lavish gifts or travel with their lovers). Under Louisiana law, the judge may award compensation for your loss as a result of your spouse's bad faith in managing community property. (La. Civ. Code art. 2341 (2022).)
Decisions about child custody and visitation in Louisiana, as in all states, must be based on what would be in the children's best interests. Louisiana law sets out a list of factors for judges to consider when making custody decisions.A parent's moral fitness is on the list, but only insofar as it affects the welfare of the child. (La. Civ. Code art. 134(7) (2022).)
It could be argued that having an affair is a moral failing or, at least, shows a lack of judgment. But the real question is whether that impacts the adulterer's ability to be a good parent. It probably doesn't in most cases. So a parent's adultery is unlikely to affect a judge's decision about visitation or where the child will live most of the time.
Child support in Louisiana is calculated under a formula spelled out in the state's child support guidelines. The formula is based primarily on the income of the parents, the number of children being supported, and the amount of time the children spend with each parent. Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a role in determining which of them will pay support or the amount of the payments.
No, adultery isn't a crime under Louisiana law.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Louisiana, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on your spouse's adultery might benefit you—especially if you want to avoid paying alimony based on the affair—you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're the one being accused of adultery in a fault-based divorce, you'll almost certainly need a lawyer to protect your interests and get a fair result.