If you've made the decision to end your marriage because of infidelity, then you might be wondering how adultery fits into the equation of divorce. Will it matter for purposes of the divorce proceedings? More specifically, will a judge be concerned about adultery when deciding alimony?
This article will provide an overview of alimony in Louisiana and explain the potential impact of adultery on alimony. If you have any questions after reading this article, you should speak with an experienced family law attorney for advice.
People going through a divorce commonly worry about alimony, which is technically referred to as "spousal support" in Louisiana. Divorcing couples have often heard horror stories about alimony from friends or the media. They don't necessarily understand the facts or the law that a judge will use to decide this issue. If they're worried that they can't make ends meet, they may also be concerned about what they'll need to tell the court to convince a judge to award or deny alimony.
Alimony is the money that one spouse (the "obligor" or "paying spouse") pays to the other (the "obligee" or "supported spouse") during or after a divorce. The basic purpose of alimony is to ensure that neither party is left impoverished while the divorce is pending or after it's over. The idea is to ensure that both spouses live as closely as possible to the standard of living they enjoyed as a married couple. (La. Civ. Code Ann. Art. 111.)
In Louisiana, judges can order "interim periodic" alimony (meaning, temporary scheduled alimony payments) that can last through, or even up to 180 days beyond, the finalization of the divorce. The purpose of temporary alimony is to help both spouses avoid falling into a deep financial hole while their case makes its way through the system. Judges can only order "interim" alimony based on the supported spouse's needs, the paying spouse's ability to pay for those needs, and the standard of living established during the marriage. (La. Civ. Code Ann. Art. 113.)
Judges can also award longer-term, "final periodic" alimony (meaning, scheduled alimony ordered for a set period of time after the divorce is complete) in the final divorce order. (La. Civ. Code Ann. Art. 112 (A).)
Get more detailed information on how alimony is determined and calculated in Louisiana, see Understanding and Calculating Alimony in Louisiana.
In Louisiana, divorcing couples can ask the court for a no-fault or a fault-based divorce. If you request a no-fault divorce, you're asking the court to grant your divorce without accusing your spouse of marital misconduct. On the other hand, a fault divorce requires the filing spouse to allege and prove that the other spouse committed marital misconduct and that those actions caused the divorce.
For a no-fault divorce, you must prove that you and your spouse have lived separately and apart for at least 180 days if there are no minor children. If you have children with your spouse, you must live separately for at least 365 days before the court will grant your divorce. (La. Civ. Code Ann. Art. 103.1.) A no-fault divorce is less expensive and time-consuming than a fault divorce because spouses don't have to produce evidence of wrongdoing before a judge will grant the divorce.
To pursue a fault divorce in Louisiana, you must demonstrate that your spouse is guilty of one of the following:
It's not enough to allege that your spouse cheated during the marriage. Instead, the court requires you to prove to the court not only that your spouse was unfaithful but that the affair was the cause of your divorce. Fault-divorce often leads to more time in court, higher legal fees, and a longer divorce trial than a no-fault divorce.
"Covenant marriages," which are legal marriages in which the spouses have undergone premarital counseling, have a different list of grounds for divorce. (La. Rev. Stat. Ann. § 9:272.) However, adultery is also on that list, which means that adultery affects all divorces in Louisiana in the same way. (La. Rev. Stat. Ann. § 9:307.)
In Louisiana, the law defines adultery as a married person entering into a sexual relationship with someone other than a legal spouse. If adultery occurred during your marriage and before you filed for divorce, that has the potential to be a major factor in deciding whether you or your spouse are entitled to a final alimony award.
Louisiana's alimony law allows judges some leeway in deciding the amount and duration of alimony. The law is also very clear that supported spouses are only entitled to final alimony if both of the following statements are true:
Louisiana courts will prevent spouses from collecting final alimony if they were at fault for the divorce, which means spouses who commit adultery that leads to a divorce, are not eligible for alimony in Louisiana.
If neither spouse is at fault (for example, there's been no adultery) and one spouse needs financial support, while the other spouse can pay, then the judge must consider all of the following factors:
One final, critical limitation on alimony in Louisiana is that the judge can't order a spouse to pay more than one-third of the spouse's net income for spousal support. The court can override this limit if the judge determines that the recipient of support was the victim of the paying spouse's domestic abuse during the marriage. (La. Civ. Code Ann. Art. 112 (D).)
If you and your spouse have minor children, the court must evaluate whether one parent should pay child support after the divorce, based on each parent's ability to pay and the children's needs. (La. Civ. Code Ann. Art. 141.) In Louisiana, the court uses an "income shares" approach to child support, which requires judges to use a specific set of guidelines to determine child support. Adultery is not a factor in child support and will not impact the final award. (La. Rev. Stat. Ann. § 9:315.)
Before the court awards child support, a judge must determine the most appropriate custody arrangement, based on the children's best interest. (La. Civ. Code Ann. Art. 131.) The court encourages parents to work together to create a parenting plan that works for everyone in the family, and if you do, the judge will usually approve it. (La. Civ. Code Ann. Art. 132.)
However, when parents can't agree, the judge will award custody only after evaluating a specific set of factors. Adultery is not a factor for the court to consider when deciding custody. However, the judge may consider each parent's moral fitness insofar as it affects the child's welfare. In other words, if a parent engages in reckless or harmful behavior that could impact a child's wellbeing, such as putting the child in contact with a dangerous or unfit partner, it could indirectly affect a custody award. (La. Civ. Code Ann. Art. 134.)
For self-help resources, check the Louisiana Judicial Branch homepage and the Law Library of Louisiana. You can also browse LouisianaLawHelp.org, a site with resources and assistance from a group of legal service providers throughout the state dedicated to helping low-income Louisiana residents with legal problems.
Finally, you can read the Louisiana Laws firsthand.